About 3,000 Tibetans flee Tibet through Nepal anually, and approximately

20,000 reside in settlements scattered throughout Nepal. Tibet’s Stateless

Nationals: Tibetan Refugees in Nepal appraises the current status and cir-

cumstances of Tibetan refugees in Nepal. Tibetans residing in Nepal and

their descendants live in legal limbo; they are not recognized as refugees or

given any definable legal status. Their future is increasingly insecure in a

country that reluctantly acknowledges, but refuses to accept, their presence.

They and their children, born in Nepal and entitled under international

law to acquire a nationality, remain stateless. Newly arriving refugees face

increased harassment and risks of being returned to Tibet. By providing

detailed information on these topics, Tibet Justice Center hopes to clarify

the circumstances for Tibetan refugees in Nepal and to suggest politically

feasible means to improve them. The circumstances highlighted by this

report reveal a pressing need for governments, UNHCR, and the interna-

tional community to reexamine the current informal arrangement regard-

ing the status and treatment of Tibetan refugees in host countries, and to

work to provide them with a more durable solution.

For further information and copies of this report, please contact our office:

Tibet Justice Center 2288 Fulton Street, Suite 312 Berkeley, California 94704, USA

info@tibetjustice.org tel: 510-486-0588 fax: 510-548-3785

Please visit our website at www.tibetjustice.org

Cover photo: Three children begin the long journey to the Tibet-Nepal border. ©Nancy Jo Johnson

Cover and book design: Charles MacNulty

ISBN 0-9709950-1-6

Tibet’s Stateless Nationals: Tibetan Refugees in Nepal

Tibet’s Stateless Nationals: Tibetan Refugees in Nepal

June 2002

iii

Table of Contents

EXECUTIVE SUMMARY 1

RECOMMENDATIONS 13

METHODOLOGY 23

BACKGROUND 26I. HISTORICAL AND CULTURAL TIES

BETWEEN TIBET AND NEPAL 26II. NEPAL’S RECENT POLITICAL HISTORY 27III. SINO-NEPALESE RELATIONS 28IV. ORIGINS: TIBETAN REFUGEES RESIDING IN NEPAL 30

A. In Flight from the 1959 UprisingB. The Guerilla Operation at Mustang

V. ESTABLISHMENT AND DEVELOPMENT

OF THE SETTLEMENTS 33VI. NEPAL’S SHIFTING APPROACH TO TIBETAN

REFUGEES: THE TREATMENT OF NEW ARRIVALS 38

LEGAL OVERVIEW 41I. INTERNATIONAL LAW 41II. NEPALESE LAW 46

THE STATUS OF TIBETANS RESIDING IN NEPAL 49I. INTRODUCTION 49II. CITIZENSHIP 52III. IDENTITY CARDS (RCS) 58

The Special Case of Children

© June 2002 by Tibet Justice CenterAll rights reserved.Printed in the United States.ISBN 0-9709950-1-6

Tibet Justice Center advocates self-determination for the Tibetan people.Through legal action and education, Tibet Justice Center promoteshuman rights, environmental protection and peaceful resolution of the sit-uation in Tibet. A non-profit membership group, Tibet Justice Center issupported by attorneys, other concerned individuals and organizations.For further information and copies of this report, please contact our office:

Tibet Justice Center2288 Fulton Street, Suite 312Berkeley, CA 94704, USAinfo@tibetjustice.orgtel: 510-486-0588fax: 510-548-3785

Please visit our website at www.tibetjustice.org

viv

III. ALLEGATIONS OF ABUSE AND

REFOULEMENT BY NEPALESE POLICE 114

THE FIRM RESETTLEMENT BAR TO ASYLUM UNDER U.S. LAW 121I. INTRODUCTION 121II. THE PRESENT STATE OF THE FIRM

RESETTLEMENT DOCTRINE 123III. APPLICATION TO TIBETAN REFUGEES IN NEPAL 125

A. New ArrivalsB. Residents at the Settlements

CONCLUSION 129

ACKNOWLEDGMENTS 131

IV. TRAVEL DOCUMENTS AND FREEDOM OF MOVEMENT 64A. Restrictions on Movement Within NepalB. Restrictions on International TravelC. Travel to India

V. PROPERTY AND EMPLOYMENT RIGHTS 69A. Property OwnershipB. Employment Rights and Taxation

VI. FREEDOM OF EXPRESSION 74A. PokharaB. KathmanduC. Religious FreedomD. Coordination Between the Nepalese

Government and the Tibetan Welfare OfficeVII. THE RELATIONSHIP BETWEEN

THE TIBETAN AND NEPALESE PEOPLES 83

THE GENTLEMAN’S AGREEMENT: TRANSIT OF TIBETAN REFUGEES THROUGH NEPAL 88I. OVERVIEW 89

A. The Terms of the Gentleman’s AgreementB. Operation of the Gentleman’s Agreement in Practice

1. Friendship Highway2. Nangpa-la

II. THE “PARTIES” TO THE GENTLEMAN’S AGREEMENT 99A. The U.N. High Commissioner for Refugees

Border Missions: Monitoring Compliance and Ensuring Non-Refoulement

B. The Government of NepalC. The Tibetan Welfare OfficeD. The United States Embassy in Kathmandu

1

Executive Summary

This report appraises the current status and circumstances of Tibetanrefugees in Nepal.1 It focuses on two groups: (1) those who arrivedin or before 1989, when Nepal ceased to permit newly arrivingTibetans to remain in Nepal; and (2) those who arrived, and con-tinue to arrive, after 1989. The former group enjoys an unwrittenright to remain in Nepal, but little else. They and their children livein an uneasy state of subsistence characterized by limited politicaland economic rights and an undefined legal status. The latter groupcannot remain in Nepal; technically, Nepalese law deems them to beillegal aliens, and they may be deported. Because of an informalarrangement or “gentleman’s agreement” between the U.N. HighCommissioner for Refugees (UNHCR) and the Nepalese govern-ment, however, these refugees should be able to transit safely throughNepal and seek refuge and assistance from the Tibetan government-in-exile in India. But the operation of this informal arrangementappears to be breaking down in practice.

By providing detailed information on these topics, Tibet JusticeCenter hopes to clarify the circumstances for Tibetan refugees inNepal and to suggest politically feasible means to improve them.While Tibet Justice Center’s research did not focus expressly on thesituation in India, all available reports indicate that the circum-stances for Tibetan refugees in India are similar in relevant respects.Above all, then, this report underscores the urgent need for a moredurable solution to the problem of statelessness that confrontsTibetan refugees. Tibet Justice Center also documented the condi-tions for Tibetan refugees in Nepal to resolve a discrete legal hurdlethat Tibetan asylum seekers in the United States often face: whetherthey have been “firmly resettled” in Nepal, which means that prior

1 For the purposes of this report, “Tibetan refugee” generally means a Tibetanresiding in Nepal without Nepalese citizenship or transiting through Nepal with-out documentation.

2 8 C.F.R. § 208.15 (2002); see also 8 U.S.C. § 1158(b)(2)(A)(vi) (1994 & Supp. 2001).

32

tion, and Nepalese law does not recognize the rights of refugeesunder the principal treaties that govern their status under interna-tional law. Provided they have a Nepalese “refugee identity certifi-cate” (RC), Tibetans who arrived before 1989 can remain in Nepalwith certain limited rights. Most live in a uneasy state of subsistence,principally in a small number of isolated settlements in theKathmandu valley and Pokhara. Tibetan refugees do not enjoy therights guaranteed to Nepalese citizens. The law in theory permitsnaturalization under certain limited circumstances, but in practicethe government does not view citizenship as a viable option forTibetans—even though most have resided in Nepal for decades orwere born and raised there. Tibetans residing in Nepal are essential-ly stateless. They are neither citizens nor refugees under the law, andthey possess neither the legal status nor the rights with which toimprove their welfare.

Identity Cards. In theory, Tibetans residing legally in Nepal as a resultof their arrival before 1989, and their children, should be issued RCs.Possession of an RC provides the bearer with proof of his or her rightto remain in Nepal, a limited ability to travel within the country, anda modicum of security against harassment. But many legally residentTibetans lack RCs. The Nepalese government issued RCs to Tibetansresiding in the settlements in 1995 and, on a smaller scale, in 1999.But the issuance of RCs remains incomplete and has left manyTibetans, particularly those residing outside of the settlements, with-out one. The government also has not distributed RCs to manyyoung adults who have reached the age of 18, at which time they areentitled to an RC. RCs also must be renewed annually. This can be aburdensome and often inefficient process, and it leaves many residentTibetans—for example, those not present at the settlements on thedate on which they are renewed in a given year—temporarily with-out proof of their right to remain in Nepal. Without RCs, Tibetansalso cannot exercise the limited rights they possess; for example, toapply for a refugee travel document, to purchase a motorbike, to

to their arrival, they received “an offer of permanent resident status,citizenship, or some other type of permanent resettlement.”2 Underthe law of the United States, firm resettlement is a mandatory bar toasylum; and under the laws of certain other states in which Tibetansseek refuge, comparable third-country resettlement or legal statusalso precludes a grant of asylum. This report establishes that Nepaldoes not offer firm resettlement to Tibetan asylum seekers.

Above all, the circumstances highlighted by this report reveal apressing need for governments, UNHCR, and the international com-munity to reexamine the current informal arrangement regarding thestatus and treatment of Tibetan refugees in host countries, and to workto provide them with a more durable solution. For both pre- and post-1989 arrivals, the alternative of third-country resettlement should beexplored seriously. Under its mandate to prevent and reduce stateless-ness, UNHCR can and should play a greater role in addressing thelong-term problem of statelessness faced by Tibetan refugees. For aslong as China occupies Tibet and commits human rights abusesagainst the Tibetan people, refugees will continue to flee persecutionby the thousands annually; and the more than 20,000 Tibetans resid-ing in Nepal (and more than 100,000 residing in India), as well astheir growing number of children, will have no viable alternative tothe insecure state of subsistence in which they currently live. WhileTibetans aspire to return to a free Tibet, the reality is that most havebecome, and remain, stateless—Tibetan nationals in a world thatacknowledges neither the existence of their nation nor their rightunder international law to seek a more secure legal status.

A summary of the report’s principal findings follows:

The Status of Tibetans Residing In Nepal

Legal Status and Access to Citizenship. Tibetans residing in Nepal haveno defined legal status. They lack meaningful access to naturaliza-

54

er, intended for one to four residents but now often housing as many astwelve. Settlement residents must share existing space because they haveno right to expand the settlements or to purchase new lands on whichto construct additional housing. Because they cannot own or incorpo-rate a business, Tibetan entrepreneurs usually must hire Nepalese citi-zens to act as nominal owners of their businesses or attempt to securecitizenship by purchasing forged citizenship papers on the black mar-ket. Most Tibetan residents struggle to subsist. They support them-selves by selling souvenirs, operating small restaurants, engaging inminor trade or industry, and some subsistence agriculture.

Freedom of Expression. Nepal permits Tibetans religious freedom forthe most part. But the authorities have in recent years increasingly

work in certain fields, or to apply for a driver’s license. Children with-out RCs may find themselves excluded from Nepalese primaryschools and higher education. Tibetans without RCs also at times suf-fer official harassment and in some cases threats of deportation.

Freedom of Movement. Legally resident Tibetans cannot travel to cer-tain “restricted” regions of Nepal, typically those near the border withChina. Seldom can they travel internationally. Those who travel torestricted areas without an RC risk arrest and even deportation. Totravel internationally, Tibetan residents must apply for a refugee trav-el document, a complex, expensive, and frequently inefficient proce-dure that makes foreign travel prohibitive for most. Furthermore,most countries do not in any event recognize or issue visas to the bear-ers of such documents. Recent political pressure from China alsoappears to have caused Nepal’s Ministry of Foreign Affairs to tightenits control over the domestic and international travel of legally residentTibetans, whom China perceives to be dissidents or “splittists.” Forsome Tibetans, purchasing forged documents is the only viable way totravel abroad. At the same time, the United States, for example, oneof the nations that does recognize Nepalese refugee travel documents,sometimes considers their possession as conclusive evidence of firmresettlement, a mandatory bar to asylum in the United States. Becausefew Tibetan asylum seekers can escape from Nepal to a country inwhich they have a right to seek asylum without acquiring documen-tation that permits them to exit Nepal, this contributes to serious con-fusion about the true legal rights and status of Tibetan refugees.

Property and Employment Rights. Tibetan residents have no right toown property or businesses. Legal and social discrimination severelycurtail their ability to secure employment. Tibetans cannot own hous-es, cars, land, or other real property. The Nepal Red Cross owns thevast majority of the settlement lands, which it holds in trust for theiruse. As the Tibetan community in Nepal grows, however, settlementresidents find themselves crowded together in homes built years earli-

During the March 10th commemoration in Kathmandu in 2002, no major confronta-

tions took place until after public events concluded when a group of young

Tibetans wearing “Free Tibet” banners on their foreheads and carrying Tibetan flags

managed to evade Nepalese police and travel to Thamel to demonstrate and shout

slogans.The demonstrators were apprehended while marching toward the Chinese

Embassy and beaten by Nepalese police. Several of the demonstrators sustained

bruises and other injuries.

AP

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The Gentleman’s Agreement:Transit of Tibetan Refugees Through Nepal

The Terms of the Gentleman’s Agreement. In recent years, between2500 and more than 3000 Tibetans have escaped from Tibet viaNepal annually. In 1989, Nepal ceased to permit newly arrivingTibetans to remain or seek refuge in Nepal. By informal arrange-ment with the Office of the U.N. High Commissioner for Refugees(UNHCR), however, Nepal has acceded to an agreement wherebyit facilitates the transit of new arrivals through Nepal, typically toTibetan exile communities in India. This should operate as fol-lows: Newly arriving Tibetans apprehended at the Sino-Nepaleseborder by Nepalese authorities will be denied entry to Nepal.Those apprehended within Nepal, however, will be turned over tothe Nepalese Department of Immigration, which ordinarily thentransfers them to UNHCR’s custody. UNHCR cooperates withthe Tibetan Welfare Office to make a preliminary determinationthat these Tibetans are “of concern to the High Commissioner,” abroad, non-specific designation used by UNHCR to refer general-ly to asylum seekers, refugees, internally displaced persons, andothers. UNHCR does not conduct refugee status determinationsfor Tibetans. Newly arriving Tibetans remain temporarily at theKathmandu Tibetan Refugee Reception Centre, which providesthem with food, shelter, and medical attention. By tacit agree-ment, they generally must depart for India within two weeks. AfterUNHCR processes new arrivals and determines them to be “ofconcern,” it ordinarily recommends to the Department ofImmigration that they be issued an “exit permit,” which solely pro-vides Tibetans with the right to travel from the Reception Centreto the Indo-Nepalese border. It provides no right of reentry, legalstatus, or protection of any kind. Indian border authorities typi-cally take these permits, together with a small “fee,” when Tibetanrefugees cross into India.

restricted the right of Tibetans to hold cultural events or to stagepeaceful political demonstrations. Public displays of Tibetan culturaland religious activities are sometimes deemed to be “anti-Chinese,”and Nepal faces heightened political pressure from China to restrictsuch activities. Tibetans therefore cannot organize peaceful politicaldemonstrations in public places or freely celebrate Tibetan nationalholidays. On several recent occasions, the annual commemoration ofthe March 10th Lhasa Uprising has erupted into violence afterNepalese police resorted to force to prevent Tibetans from demon-strating outside their local communities. The Nepalese governmentdoes not formally recognize the Tibetan government-in-exile or itsrepresentative in Kathmandu. But the authorities often tacitly requestthe assistance of the Tibetan Welfare Office to prevent Tibetans fromengaging in activities that may be perceived by China as political andthus a threat to Nepal’s diplomatic relationship with China.

The Relationship Between the Tibetan and Nepalese Peoples. With theexception of some Tibeto-Burmese ethnic groups residing in thenorthern regions of Nepal, with whom Tibetans share cultural andreligious affinities, Tibetans remain largely alienated from Nepalesesociety. While most have spent the majority of their lives in Nepal,in the main they reside in isolated settlements or segregated neigh-borhoods on the outskirts of Kathmandu. Their children generallyattend separate schools. Economic and political instability inNepal, and the continuing Maoist insurgency, also have generatedsome resentment among Nepalese citizens toward the Tibetancommunity in Nepal, particularly toward the few Tibetans whohave achieved financial success (often by virtue of their involvementin the once-thriving carpet industry). Disaffected political groupssometimes scapegoat Tibetans, blaming them for the socioeconom-ic and political problems Nepal faces. At times, this resentmentmanifests itself in dangerous ways. In recent years Tibetans resi-dents have been the victims of burglaries and ethnically motivatedviolence.

98

Tibet Justice Center’s research suggests that the consequences haveincluded: an increase in instances of refoulement and other abuses,and an increasing lack of knowledge on the part of the police abouttheir obligations under the agreement. The government of Nepal hasacceded to the gentleman’s agreement for two principal reasons: Itrequires UNHCR’s assistance with its Bhutanese refugee crisis, andcooperation in the gentleman’s agreement appears to be something ofa quid pro quo for that assistance. It also remains under pressure fromthe United States, the European Union, and other foreign-aid donorsto assist Tibetan refugees in need. Countervailing pressure from theChinese government to repatriate Tibetans and tighten border con-trol, however, has led to increasing incidents of non-compliance. TheTibetan government-in-exile, operating through the TibetanWelfare Office in Kathmandu performs most of the practical workrequired to maintain the gentleman’s agreement, including provid-ing food, shelter, and medical care to new arrivals, assisting in theirprocessing, cooperating with UNHCR to ensure that Tibetans reachthe Reception Centre, and arranging for their departure to India.While the Nepalese government does not officially recognize theTibetan Welfare Office because this would be perceived by China asan intolerable political statement, it relies on the assistance of theTibetan Welfare Office to implement the gentleman’s agreement.The United States Embassy in Kathmandu, finally, cooperates withUNHCR and the Nepalese government to ensure compliance withthe gentleman’s agreement. It participates in meetings with theMinistry of Home Affairs and works actively to advance the interestof the United States in ensuring the safe transit of Tibetan refugeesthrough Nepal. The United States also provides much of the fund-ing, channeled through UNHCR and the Tibetan Welfare Office,that supports the operation of the gentleman’s agreement.

Allegations of Abuse and Refoulement by Nepalese Police. The gentle-man’s agreement cannot operate effectively unless the Nepalese policeunderstand and comply with it. Tibet Justice Center’s research sug-

Operation of the Gentleman’s Agreement in Practice. The “terms” of thegentleman’s agreement are rarely followed. In practice, mostTibetans arrive at the Reception Centre in Kathmandu independ-ently, usually by one of two routes: via the Friendship Highway,which extends from Lhasa to Kathmandu, or via the Nangpa-la passin the Solu Khumbu region of the Himalayas in northern Nepal.Tibetans often employ freelance guides to assist them in journeyingsafely to Kathmandu. Both the Friendship Highway and Nangpa-laroutes are fraught with danger, including natural perils such as a lackof adequate food and shelter, particularly in the winter months, andthe risk of apprehension by Chinese or Nepalese authorities.Contrary to the gentleman’s agreement, Nepalese police increasing-ly appear to be forcing Tibetans apprehended within several dayswalking distance of the border to return to Tibet, often at great riskto their lives and safety. China treats these Tibetans as political dis-sidents. Reports of detention, torture, and other maltreatment byChinese authorities are commonplace. Even without reference to thegentleman’s agreement, the act of returning refugees to a state wheretheir lives or freedom may be threatened violates the bedrock prin-ciple of international refugee law prohibiting refoulement.

The “Parties” to the Gentleman’s Agreement. The gentleman’s agree-ment requires the active cooperation of UNHCR, the Nepalese gov-ernment, the Tibetan government-in-exile, and the United StatesEmbassy in Kathmandu. UNHCR plays several vital roles. It pro-vides a modicum of legitimacy that the Nepalese government deemscrucial to its cooperation in implementing the agreement. UNHCRchannels funds received from donor governments, particularly theUnited States, to support the day-to-day operation of the agreement.And until recently, it conducted missions to the border regions ofNepal in order to inform the Nepalese police of the terms of theagreement and international human rights law, and to monitor com-pliance. For reasons that remain somewhat unclear, the Nepalesegovernment ceased to permit these missions as early as 1998, and

1110

The “Firm Resettlement” Bar to Asylum Under U.S. Law

Declassified documents from the U.S. Department of State makeclear that the State Department, the Immigration and NaturalizationService (INS), and the U.S. Embassy in Kathmandu are misinformedin certain respects about the circumstances for Tibetan refugees inNepal. As a consequence, the INS at times deems Tibetan asylumseekers, both those who arrived before 1989 and those transitingthrough Nepal incident to their flight from Tibet, to be “firmly reset-tled” in Nepal. In fact, Tibet Justice Center’s research establishes thatas a matter of law, few, if any, Tibetan asylum seekers can acquire firmresettlement in Nepal. This mandatory bar to asylum should seldompreclude consideration of Tibetan asylum applications on the merits.Because virtually all Tibetans fleeing persecution must travel throughNepal and India, where conditions are reportedly similar, en route toa country in which they have a right to seek refuge, clarification ofthe conditions for Tibetan refugees in Nepal and India would facili-tate the proper assessment of Tibetan asylum applications.

This report concludes by noting that while the “gentleman’sagreement” provides a minimal arrangement that facilitates the abil-ity of some Tibetans to escape persecution, and while the settlementsin Nepal provide Tibetan residents with a temporary subsistenceexistence, in the long term, governments, UNHCR, and the inter-national community must begin to take steps to establish a moredurable solution to the fundamental problem underscored by thisreport: Tibetan refugees remain in legal limbo, one of the largestcommunities of stateless persons in the world. The report presents aseries of recommendations for beginning to address the problemshighlighted in a constructive and politically feasible way. In particu-lar, Tibet Justice Center recommends that third-country resettle-ment, which already has been undertaken successfully on a smallscale in Switzerland, Canada, and the United States, be given serious

gests that because UNHCR nolonger carries out border missions,and because pressure from Chinaappears to have caused the Nepalesegovernment to cease to comply con-scientiously with the gentleman’sagreement, Tibetans arriving inNepal increasingly face dangers ofrefoulement and, at times, policeabuses. The police in Solu Khumbureported receiving a directive fromthe Ministry of Home Affairs inKathmandu instructing them toreturn apprehended Tibetans to theborder, in violation of the fundamen-tal principle of non-refoulement. Inpractice, this appears to have trans-lated into a trend whereby the policewill “encourage” Tibetans to returnto China—at times, at gunpoint—and follow them back toward theborder for several hours or even

days. Because Nepalese police face dangers from the Maoist insur-gency, and because, according to Tibet Justice Center’s interviews,they have not been receiving the stipends to which they are entitledfor their cooperation, the police are reluctant to accompany Tibetansto the Kathmandu Reception Centre as required by the agreement.In some cases police reportedly resort to theft or extortion of moneyfrom new arrivals to supplement their salaries. In rarer instances therehave been reported incidents of more severe abuses, including deten-tions, shootings, and rape. Resumption of UNHCR’s border mis-sions and greater efforts by the government to educate the policeabout the gentleman’s agreement are vital steps to prevent such abus-es in the future.

In November 2000, this woman, one

of twenty-two Tibetan refugees

apprehended and detained by the

Nepalese police at the town of Jiri

following their escape from Tibet,

was shot in the leg by the police

when the refugees sought to escape

fearing that they would be repatriat-

ed by the police. At the time of

Tibet Justice Center's research, she

was still recovering from her injuries.

Eliz

abet

h B

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ige,

May

200

1

12

Recommendations

To the Nepalese Government:

The Nepalese government should be acknowledged and commend-ed for its reception and accommodation of Tibetan refugees over theyears. The government can and should take additional steps to pro-tect Tibetan refugees in Nepal, particularly as the situation ofTibetan residents becomes increasingly precarious and incidents ofrefoulement and ill-treatment of Tibetans transiting through the bor-der regions continue.

Generally:

• Ratify the 1951 Convention Relating to the Status of Refugees andthe 1967 Protocol Relating to the Status of Refugees (RefugeeConventions). Adopt implementing legislation immediately afterratification.

• Enact legislation to establish a formal process for refugees to seekasylum. Define and guarantee the rights and status of refugeesand asylum seekers by law in accordance with internationally rec-ognized human rights standards.

• Cooperate fully with the Office of the United Nations HighCommissioner for Refugees (UNHCR) to facilitate its mandateto protect refugees, asylum seekers, and stateless persons. In par-ticular, ensure that the Ministry of Home Affairs and theDepartment of Immigration consult regularly with the UNHCRCountry Representative for Nepal to establish and maintain astrong and effective working relationship.

consideration. This resolution would be in the interest of Nepal,which fears that the growth of its Tibetan community is beginningto threaten the integrity of the Nepalese cultural identity. It alsowould provide Tibetans, currently suspended in a legal limbo thataffords them neither citizenship nor refugee status, to begin to estab-lish a more stable existence and to build a more secure future forthemselves and their children.

13

1514

border, to China. All Tibetans entering Nepal from Tibet withoutdocumentation should be presumed to be asylum seekers and,until their status has been determined, afforded the protection dueto refugees under international law. At a minimum, all Tibetansshould be ensured safe passage to the Tibetan Refugee ReceptionCentre in Kathmandu for an assessment by UNHCR.

• Swiftly investigate reports of refoulement and take disciplinarymeasures, which may include prosecution, against perpetrators.

• Permit UNHCR to resume sending staff to border regions in orderto educate immigration and police officers about the terms of thegentleman’s agreement and international human rights standards.

• Inform all border police of the terms of the gentleman’s agreement.Ensure that when patrol rotations occur, new officers understandtheir obligations under the gentleman’s agreement.

• Seek to provide immigration and police officers stationed in theborder regions with communication equipment, either telephonesor radios, to enable them to maintain contact with the Ministry ofHome Affairs, the Department of Immigration, and UNHCRstaff.

• Instruct border police that if they cannot accompany Tibetanrefugees to the Tibetan Refugee Reception Centre in Kathmandu,the refugees should be permitted to make their way to Kathmanduindependently and without delay. Tibetans seeking to reach theReception Centre should not be detained for lack of police accom-paniment.

• Because the absence of interpreters often makes it difficult for bor-der police to carry out their obligations under the gentleman’sagreement, provide border police with a letter in Tibetan explain-

Regarding Tibetan Residents of Nepal:

• Immediately provide all eligible Tibetans, those who arrived in orbefore 1989 and their children, with refugee identification certifi-cates (RCs).

• Implement Nepal’s obligation under the CRC to provide childrenwith the means to acquire a nationality.

• To reduce unnecessary administrative burdens on the Ministry ofHome Affairs and on Tibetan residents, extend the term of validi-ty of RCs significantly beyond the current term of one year.

• Repeal the present restrictions on the rights of Tibetan residents toown property, work, establish and incorporate businesses, andtravel freely.

• Permit the Tibetan settlements to purchase and develop more landfor their populations.

• Establish a fluid and less burdensome procedure to enable long-term Tibetan residents eventually to acquire Nepalese citizenship.

• Respect Tibetans’ rights freely and peacefully to express their polit-ical views and to celebrate cultural and religious holidays. Ensurethat police protect these rights and do not instigate violenceagainst Tibetans conducting peaceful celebrations.

Regarding Tibetans in Transit through Nepal:

• Immediately cease the practice of refoulement of Tibetan asylumseekers. Repeal the order issued by the Ministry of Home Affairsinstructing immigration and border police to return undocument-ed Tibetans, found at or within several days walking distance of the

1716

• Implement UNHCR’s mandate to prevent statelessness forTibetan refugees.

• Provide technical assistance and advice to the Nepalese govern-ment in drafting domestic legislation intended to ensure refugeeprotection and to avoid and reduce statelessness.

• Provide greater authority and support to a local, Nepalese-speakingUNHCR staff officer responsible for Tibetan refugees. The officershould be provided with a designated vehicle and driver to enableUNHCR staff to respond promptly to reports of detention or otherendangerment of Tibetan refugees in the border regions of Nepal.

• Actively work with foreign governments to promote and facilitatethe third-country resettlement of Tibetan refugees—as an instru-ment of refugee protection, a means to reduce the threat of state-lessness, and a feasible and durable solution to the plight ofTibetan refugees.

Regarding Tibetan Residents of Nepal:

• Assist the Nepalese government to formalize a procedure for theissuance of fraud-proof RCs and travel documents for all residentTibetans.

• Urge the Nepalese government to permit the Tibetan settlements topurchase and develop more land for their populations, and to repealexisting restrictions on the rights of Tibetan residents to own prop-erty, work, establish and incorporate businesses, and travel freely.

Regarding Tibetans in Transit through Nepal:

• Encourage and provide assistance to the Nepalese government tocreate an information sheet for distribution to all border police and

ing the gentlemen’s agreement and clarifying the police’s obliga-tions to assist them.

• Permit local Nepalese citizens in the border regions to assistTibetan refugees in need of food, shelter, medical attention, orother assistance, without interference by the police.

• For Tibetans seeking voluntarily to return to Tibet through Nepal,work with UNHCR to establish a procedure for their safe andorderly repatriation, without the risk of fines or imprisonment byNepalese authorities.

• Release all Tibetans currently imprisoned for attempting voluntar-ily to return to Tibet through Nepal.

To the Office of the United Nations High Commissioner for Refugees in Nepal(UNHCR):

The Office of the United Nations High Commissioner for Refugeesin Nepal should be acknowledged and commended for its efforts toestablish and implement creative solutions to issues concerningTibetan refugees in Nepal. Still, there is more that UNHCR shouldbe doing pursuant to its mandate to protect both Tibetan refugeesin transit through, and those residing in, Nepal—and to seek adurable solution to their plight.

Generally:

• Urge the Nepalese government to ratify the Refugee Conventions,the 1954 Convention Relating to the Status of Stateless Persons,and the 1961 Convention on the Reduction of Statelessness, andimmediately to adopt relevant implementing legislation.

1918

• Increase funding to the Reception Centre during the wintermonths, when its needs become particularly great.

• Issue documentation to all Tibetans found to be “of concern” suchthat, should they subsequently seek asylum in third countries, theypossess proof of UNHCR’s finding that they are “of concern to theHigh Commissioner,” their date of arrival in and departure fromNepal, and their birthplace.

To All Donor Governments:

• Condition military and economic aid to Nepal on the govern-ment’s compliance with the gentlemen’s agreement and respect forthe fundamental human rights of Tibetans, both those who residein Nepal and those seeking refuge in India or elsewhere.

• Allocate funds to UNHCR specifically earmarked for assistingTibetan refugees.

• Urge Nepal immediately to issue RCs to all Tibetan residents eli-gible for them.

• In the spirit of international cooperation and burden-sharing, pro-vide for the resettlement of Tibetan refugees from Nepal and India,as did Canada, the United States, and Switzerland in past years.

In particular, the government of the United States should be acknowl-edged and commended for its support of UNHCR’s work with Tibetanrefugees in Nepal and further called upon to:

• Insist that the Nepalese government immediately carry out itspromise to the former Special Coordinator for Tibet to issue RCs toall resident Tibetans. Earmark funds specifically for this purpose.

immigration patrols explaining their obligations under the gentle-man’s agreement. In addition, all such officers should receive a let-ter in Tibetan for the purpose of communicating to newly arrivingTibetan refugees the terms of the gentlemen’s agreement and theobligations of the police to assist them.

• Work with the Nepalese government to establish a series of low-profile workshops for UNHCR, the Ministry of Home Affairs, theDepartment of Immigration, and representatives of concernedgovernments to agree upon arrangements to ensure the smoothfunctioning of the gentleman’s agreement.

• Provide earmarked funds for the Department of Immigration tocompensate Nepalese police who comply with their obligation toaccompany newly arriving refugees to the Tibetan RefugeeReception Centre in Kathmandu. Monitor the disbursal of thesefunds strictly.

• Work with the Nepalese government to ensure that, for policeunwilling or unable to accompany Tibetan refugees, a policy isimplemented whereby officers who provide bus fare, directions,and food to newly arriving Tibetans sufficient to allow them tojourney safely to the Reception Centre are reimbursed and com-pensated upon proof of their compliance.

• Renew and emphasize UNHCR’s request to the Nepalese govern-ment to permit its staff, and qualified non-governmental organiza-tions willing to lend assistance, to resume border missions to edu-cate the border police in the terms of the gentleman’s agreementand relevant international human rights standards. Take steps toreassure the Nepalese government that such missions will be car-ried out in a low-profile manner that will not interfere with itsdiplomatic relationship with China.

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• Based upon the information documented in this report, make clearthat Tibetan asylum seekers residing in or transiting through Nepalcannot, as a matter of law, acquire the rights necessary to be deemed“firmly resettled” in Nepal. INS asylum officers and trial attorneysshould cease to adopt this position in asylum proceedings unlessextenuating circumstances (such as the rare case of a Tibetan whohas acquired Nepalese citizenship in Nepal) exist.

To the Tibetan Government-in-Exile:

The Tibetan government-in-exile should be acknowledged andcommended for its efforts to provide for the security and welfare ofthe Tibetan community in exile, to preserve the Tibetan identity andcultural heritage of its people, and for its continuing work to ensurethe safety of Tibetans fleeing persecution.

• Concerning newly arriving Tibetans, emphasize to the Nepalesegovernment that it is the Tibetan government-in-exile’s policy tofacilitate the transit of Tibetan refugees through Nepal, not tofacilitate their illegal resettlement in Nepal.

• Clarify to the Tibetan community in exile that the Tibetan gov-ernment-in-exile does not seek to discourage Tibetans in exile fromobtaining citizenship in other countries.

• Encourage collaboration between Tibetan organizations andNepalese non-governmental organizations to address issues of mutu-al concern and to promote closer relations between the Tibetan andNepalese peoples.

To Non-Governmental Organizations (NGOs):

• Urge the Nepalese government immediately to cease the practice ofrefoulement of Tibetan refugees; to halt the imprisonment of Tibetans

• Ensure that the Nepalese government understands the strong inter-est of the United States in ensuring the welfare and safety of Tibetansresiding in or transiting through Nepal.

• Make clear that Nepal’s official position that Tibet is an integralpart of China is not inconsistent with its recognition that Tibetansmay face persecution there, making them eligible for refugee statusor asylum under international law.

• Until Nepal ratifies the Refugee Conventions, ensure that, at a min-imum, it abides by the paramount customary international lawobligation of non-refoulement and does not interfere with the effortsof UNHCR and concerned governments to protect the rights ofTibetan refugees.

To the U.S. Immigration and Naturalization Service:

• Inform all asylum officers and immigration judges of the factual andlegal circumstances in Nepal for Tibetan refugees fleeing persecutionvia Nepal.

• Ensure that all asylum officers and immigration judges understandthe restrictions on the rights of Tibetan residents in Nepal and thecrucial distinction between Tibetans who arrived in Nepal in orbefore 1989 and those who arrived thereafter—and who continueto arrive annually in flight from persecution. Further inform asy-lum officers and immigration judges of the situation regarding theissuance of RCs to pre-1989 arrivals, in particular, that manyTibetans residing in urban areas (mainly in Kathmandu) outside ofthe formal settlements, as well as the children of settlement resi-dents who reached the age of eighteen subsequent to 1995, havenot been issued RCs.

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Methodology

This report documents the conclusions of a fact-finding mission car-ried out by Tibet Justice Center in cooperation with Yale LawSchool’s Allard K. Lowenstein International Human Rights LawClinic. Following preparatory legal and factual research in Spring2001, Tibet Justice Center conducted field research in Nepal fromMay 18 to June 14, 2001.

The mission had two principal objectives: first, to ascertain thelegal status, rights, and treatment of Tibetans residing—whetherpermanently or temporarily—in Nepal; and second, to investigateNepal’s compliance with the “gentleman’s agreement,” an informalarrangement in place since 1990 that permits newly arriving Tibetanrefugees to transit through Nepal. In the course of this research,Tibet Justice Center also documented and gathered informationabout related issues including freedom of cultural expression forTibetans in Nepal; the issuance of refugee identity cards and inter-national travel documents to Tibetans residing legally in Nepal; alle-gations of Nepalese police abuses against newly arriving Tibetanrefugees; the effect of the Maoist insurgency on Nepal’s ability tocomply with the gentleman’s agreement; and the relationshipbetween the Nepalese people and the substantial Tibetan refugeepopulation—estimated at roughly 20,000—that resides in Nepal.

To gather information on these issues, Tibet Justice Center con-ducted interviews with Nepalese government officials, the Nepalcountry representative of the United Nations High Commissionerfor Refugees (UNHCR) in Kathmandu and other UNHCR staff,representatives of non-governmental organizations (NGOs), bothwithin and outside of the Tibetan community, journalists, police,Nepalese citizens, Tibetans residing (with and without formal legalstatus) in Nepal, and newly arrived Tibetan refugees in transit toTibetan exile settlements, monasteries, and schools in India. TibetJustice Center’s research included thirty-four interviews with newly

seeking voluntarily to return to Tibet through Nepal; to ratify theRefugee Conventions; and to guarantee Tibetan residents their civiland political rights, including meaningful access to citizenship.

• Collaborate with the Tibetan Welfare Office and Tibetan NGOs toaddress issues of mutual concern.

• Offer technical assistance and personnel resources to UNHCR, theNepalese government, and the Tibetan Welfare Office to assistthem to, inter alia, register resident Tibetans, assist with border mis-sions, and monitor compliance with the gentleman’s agreement.

• Work with foreign governments to promote and facilitate the reset-tlement of Tibetan refugees in third countries.

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citizens, and UNHCR staff. The interviews did not inquire into thereasons for Tibetan refugees’ flight except insofar as this clarifiedquestions concerning the border control and flight issues central tothe objectives of Tibet Justice Center’s research. At the settlements,interviews focused primarily on the rights and status of Tibetansresettled permanently in Nepal as a result of their arrival before1989. Many of these individuals have resided in Nepal since the1960s and 70s, at which time the Nepalese government resettled thefirst wave of Tibetan refugees, most of whom arrived in the after-math of the 1959 Lhasa Uprising. The vast majority of the otherpermanent residents at the settlements are their children.

arrived refugees at the Tibetan Refugee Reception Centre inSwayambunath, Kathmandu;3 thirty-eight interviews with residentsat the Tibetan settlements of Jawalakhel, Tashi Ling, Paljorling, andTashi Palkhiel; interviews with Sherpas and Nepalese police inThame and Khunde, villages in northeastern Nepal situated along theroute traversed by many Tibetans after crossing the Tibeto-Nepaleseborder at the Nangpa-la pass; interviews with Nepalese governmentofficials including (a) Shree Kant Regmi, Secretary, Ministry of HomeAffairs; (b) Chakra Prasad Bastola, Minister, Ministry of ForeignAffairs; (c) Udaya Nepali Shrestha, Secretary, Ministry of Law andJustice; (d) Ganesh Dhakal, Undersecretary, Ministry of HomeAffairs; (e) Umesh Prasad Mainali, Director-General, Department ofImmigration; and (f) Kapil Shrestha, Secretary, Nepal Human RightsCommission.4

As this report goes to press, some of the individuals interviewedby Tibet Justice Center no longer hold the official positions that theyoccupied during the period of research. But news reports and evi-dence gathered subsequent to the mission suggest that the findingspresented in this report continue accurately to reflect Nepal’s poli-cies and practices toward Tibetan refugees.

Tibet Justice Center worked principally in Kathmandu and sur-rounding areas, but also conducted research at Tibetan settlementsin Pokhara and in Solu Khumbu, the northeastern region of Nepalthrough which many newly arriving Tibetan refugees pass in thecourse of their escape from Tibet. At the Reception Centre, TibetJustice Center elicited information about the flight of refugees fromTibet; the difficulties they encountered on their journey; and theirinteractions with Chinese and Nepalese authorities, local Nepalese

3 A few of these interviews were conducted with two—and, in one case, three—refugees who fled Tibet together and therefore related substantially the same events.4 Secretaries occupy the highest bureaucratic posts in the Nepalese ministries andtherefore most often maintain their official position despite changes in the rulingparty or coalition. Ministers, by contrast, are political appointees. Informally, TibetJustice Center also spoke with Surya Nath Upadhyay, Chief Commissioner,Commission for the Investigation of Abuse of Authority.

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many of these ethnic groups, which populate the Himalayan regionsof Nepal, rely on cross-border trade with Tibetans and Chinese set-tlers living in Tibet for their economic livelihood.9 Moreover, “[f ]orcenturies Tibetans had traveled to Buddhist temples in India andNepal, and the Indians and Nepalese, in turn, had gone on pilgrim-ages to Mount Kailesh, the holy mountain of Tibet.”10 Economicinterdependence and cultural and religious ties between Nepal andTibet persist today, although Nepal now must negotiate its politicalrelationship with Tibet through the Chinese government.

II. Nepal’s Recent Political History

For virtually all of its history, various dynasties ruled Nepal absolutely.In 1854, the “Ranas,” who coopted their name from a well-knownIndian family, overthrew the ruling Shah dynasty. For the next centu-ry, a succession of Rana prime ministers ruled Nepal.11 In 1951, how-ever, Nepal instituted a cabinet system of government.12 During thesame year, the government opened Nepal’s doors to foreigners for thefirst time.13 On December 14, 1955, the United Nations approvedNepal’s membership application.14 Four years later, the United States

Background

I. Historical and Cultural Ties Between Tibet and Nepal

Tibet’s historical relationship with the Kingdom of Nepal dates backmillennia. In the Seventh Century, King Songtsen Gampo of Tibetmarried the Nepalese princess Bhrikuti who, together with the imperi-al Chinese princess Wen Cheng, shares the credit for introducingBuddhism to Tibet.5 By the Ninth Century, the Tibetan Empire ofKing Trison Detsen encompassed the entire territory of present dayNepal.6 With the decline of Tibet’s military empire, Nepal regained itspolitical independence, and in later years, it was the militaristicNepalese Kingdom of the Gorkhas that on several occasions threatenedTibet.7 But despite the sometimes tense political relationship betweenNepal and Tibet, social and economic exchanges between these nationsflourished because of their geographic proximity and cultural ties.

Many of the peoples of northern Nepal, such as the Sherpas,Tamangs, Melangis, and Yolmu, share strong religious and culturalbonds, as well as common Tibeto-Burmese racial origins, withTibetans. Indeed, Foreign Minister Bastola remarked that “we [theNepalese people] have our own ‘Tibetan’ population.”8 To this day,

5 MICHAEL C. VAN WALT VAN PRAAG, THE STATUS OF TIBET: HISTORY, RIGHTS,AND PROSPECTS IN INTERNATIONAL LAW 2 (1987); see also LEE FEIGON,DEMISTIFYING TIBET 26 (1996).6 FEIGON, supra note 5, at 43.7 The Gorkhas invaded Tibet in 1788 and again in 1854. See VAN WALT VAN

PRAAG, supra note 5, at 19, 23. Under the terms of the Nepal-Tibet Treaty of1856, which ended the latter war, Nepalese traders gained unique trading privi-leges in Tibet, and the Nepalese government enjoyed special rights related to thesettlement of Nepalese disputes and affairs with Tibet. See id. at 24; see alsoMELVYN C. GOLDSTEIN, A HISTORY OF MODERN TIBET, 1913-1951, at 382(1989). After solidifying its control of Tibet in 1959, China revoked most of theseprivileges. See FEIGON, supra note 5, at 148.8 Tibet Justice Center interview with Chakra Prasad Bastola, Minister, Ministry of

Foreign Affairs, in Kathmandu (May 25, 2001).9 Tibet Justice Center interview with Kapil Shrestha, Secretary, Nepal HumanRights Commission, in Kathmandu (June 12, 2001).10 ANN AMBRECHT FORBES, SETTLEMENTS OF HOPE: AN ACCOUNT OF TIBETAN

REFUGEES IN NEPAL 19 (1989).11 Isabel Hilton, Royal Blood, NEW YORKER, July 30, 2001, at 45-46.12 Central Intelligence Agency, The World Factbook 2000 – Nepal, at<http://www.cia.gov/cia/publications.factbook.geos/np.html> (visited Sept. 15,2001). 13 FORBES, supra note 10, at 17.14 To establish its statehood, Nepal relied upon, inter alia, treaties it had conclud-ed with Tibet. It also “listed Tibet among the six countries with which it had‘established diplomatic relations’ and in which it maintained legations”; and“whereas Nepal maintained full diplomatic relations with Tibet during this peri-od, it never established diplomatic relations with the Republic of China.” VAN

WALT VAN PRAAG, supra note 5, at 139-40.

Both governments reaffirmed the “five principles of friendly relations”:

1. Mutual respect for each other’s territorial integrity andsovereignty;

2. Mutual non-aggression;3. Non-interference in each other’s internal affairs for any

reasons of an economic, political or ideological character;4. Equality and mutual benefit; and5. Peaceful coexistence.20

Tibet Justice Center’s interviews with Nepalese government officialssuggest that these five principles, and the concerns that animate them,continue to influence Nepal’s approach to the often politically sensitivequestions concerning Tibet and Tibetan refugees. Foreign MinisterBastola, for example, remarked that “[b]ecause we are so near [toChina], we cannot do without a stand on Tibet. It is an autonomousregion of China. That has been our stand ever since [China annexedTibet].”21 But the government’s approach to Tibetan refugees is not asclear, because it faces countervailing pressures from the internationalcommunity—particularly from large foreign-aid donors such as theUnited States and the European Union—to recognize the special sta-tus and plight of Tibetans fleeing from Tibet via Nepal.22

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15 FORBES, supra note 10, at 18.16 See generally T. LOUISE BROWN, THE CHALLENGE TO DEMOCRACY IN NEPAL: APOLITICAL HISTORY (1996); PREM RAMAN UPRETY, POLITICAL AWAKENING IN

NEPAL—THE SEARCH FOR A NEW IDENTITY (1992); see also U.S. DEP’T OF STATE,2001 COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: NEPAL (2002).17 See NEPAL CONST., Pt. V.18 Tibet Justice Center interview with Tapan K. Bose, Secretary-General, SouthAsia Forum for Human Rights, in Kathmandu (June 7, 2001).19 FORBES, supra note 10, at 18-19 (quoting G.L. HARRIS, AREA HANDBOOK FOR

NEPAL, BHUTAN, AND SIKKIM 319 (1973)).

and France opened embassies in Kathmandu.15

In 1990, the ruling Shah, King Birenda, acceded to popularpressure for democracy, and Nepal became a constitutional monar-chy.16 The 1990 Constitution allocates power between the royalfamily and a parliamentary government.17 In recent years, however,Nepal’s fledgling democracy has faced severe strains. A Maoistinsurgency that began in 1994 poses a constant threat to the elect-ed regime. More recently, the tragic massacre of King Birenda andthe royal family caused political upheaval, the aftereffects of whichcontinue to test the resilience of Nepal’s democracy. But at present,the constitutional monarchy established in 1990 survives and con-tinues to provide the operative framework for Nepal’s political andlegal systems.

III. Sino-Nepalese Relations

The Nepalese monarchs traditionally maintained close relations withChina.18 Nepal’s change of regime and contemporaneous decision tobegin modernization in 1951 coincided roughly with China’s annex-ation of Tibet. From its inception, the modern Nepalese governmenttherefore has been sensitive to the danger of antagonizing China withovert support for Tibet. In general, Nepal’s foreign policy has “empha-sized the ‘theme of friendship and peaceful coexistence with all coun-tries—within the framework of nonalignment and neutrality.’”19 In1966, Nepal and China concluded a treaty that reflects this theme.

20 Agreement on Trade, Intercourse, and Related Questions Between the TibetAutonomous Region of China and Nepal, P.R.C.-Nepal, May 2, 1966, reprintedin NEPAL’S RELATIONS WITH INDIA AND CHINA: DOCUMENTS, 1947-1992, at1349 (Avtar Singh Bhasin ed., 1994).21 Tibet Justice Center interview with Chakra Prasad Bastola, Minister, Ministryof Foreign Affairs, in Kathmandu (May 25, 2001).22 The United States actively monitors Nepal’s treatment of Tibetan refugees. TibetJustice Center interview with Julia Taft, former Assistant Secretary of State forPopulation, Migration, and Refugees, and Special Coordinator for Tibet, inWashington, D.C. (April 17, 2001). The European Union also conditions aid toNepal in part on its agreement not to expel Tibetan refugees. Angela Dietrich,Tibetan Refugees in Nepal: Balancing Humanitarian and Security Concerns, inSTATES, CITIZENS, AND OUTSIDERS: THE UPROOTED PEOPLES OF SOUTH ASIA 288(Tapan K. Bose & Rita Machanda eds., 1997).

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this time would not arrive in the near future. But few possessed themeans to establish settlements with long-term economic viability. By1961, many of the refugees faced serious food shortages and sufferedfrom a lack of adequate shelter and healthcare.25

In May 1960, Nepal requested assistance from the InternationalCommittee of the Red Cross (ICRC) and other aid organizations.Funded primarily by the United States Agency for InternationalDevelopment (USAID), the ICRC established emergency relief pro-grams for the refugees. With airplanes provided by the Swiss RedCross, the ICRC parachuted supplies to refugee encampments in theremote Himalayan regions.26 At about the same time, Tibetan offi-cials of the government-in-exile returned to Dharamsala, India, froma fact-finding mission to Nepal, and reported to the Dalai Lama onthe dire conditions facing the refugees there. In response, the Tibetangovernment established the Kathmandu Tibetan Welfare Office, abranch of the Tibetan Ministry of Home Affairs. The Tibetan WelfareOffice functioned as a liaison between the refugees, various aid organ-izations, and the Nepalese government.27 Also known as the Office ofTibet, it continues to serve this vital role today.28

B. The Guerilla Operation at Mustang

The guerilla operation in Mustang created a second major source ofNepal’s original Tibetan refugee population. From about 1959 to 1974,the Nepalese government turned a blind eye to a Tibetan military base

IV. Origins:Tibetan Refugees Residing in Nepal

Today, approximately 20,000 Tibetans reside in Nepal. The vastmajority of this population arrived before 1989 and particularly dur-ing the period between 1959, when the People’s Liberation Army’s(PLA) assault on Lhasa sent thousands of Tibetans into exile, and1974, when the Nepalese government forcibly shut down the Tibetanguerilla base that had been operating for more than fifteen years inthe western Kingdom of Mustang.23 The remainder of the Tibetanrefugee population in Nepal is comprised largely of the children ofthis first caseload and, to a much lesser extent, Tibetans who have fledsince the late 1980s. The latter group, the second caseload, almostinvariably proceeds to India because the Nepalese government nolonger provides sanctuary to newly arriving Tibetan refugees.

A. In Flight from the 1959 Uprising

While some Tibetan refugees arrived in Nepal in the early 1950s, thefirst major influx crossed the border in 1959, following the LhasaUprising. At that time most did not expect to remain in Nepal for morethan a few months. They established camps primarily in theHimalayan border regions of Nepal such as Mustang, a small, largelyautonomous, and ethnically Tibetan kingdom in western Nepal, as wellas in Nubri, and Solu Khumbu. The climate in these regions resemblesthat of Tibet. The refugees also felt that the proximity of the camps tothe border would enable them to return home easily when the appro-priate time came.24 Shortly, however, it became apparent to many that

23 See TAPAN K. BOSE, PROTECTION OF REFUGEES IN SOUTH ASIA: NEED FOR A

LEGAL FRAMEWORK 38 (2000).24 See FORBES, supra note 10, at 14. Virtually all of the Tibetans interviewed byTibet Justice Center at the settlements in Pokhara moved there from theHimalayan regions to which they had initially fled. The Nepalese government per-mitted them to construct permanent settlements in Pokhara and elsewhere in thelate 1960s and early 1970s.

25 LOUISE HOLBORN, REFUGEES, A PROBLEM OF OUR TIME: THE WORK OF THEUNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, 1951-1971, at 745-46(1975); see also FORBES, supra note 10, at 37.

26 OFFICE OF HIS HOLINESS THE DALAI LAMA, TIBETANS IN EXILE, 1959-1969, AREPORT ON TEN YEARS OF REHABILITATION IN INDIA 137-38 (1969); see alsoICRC, ANNUAL REPORT 28 (1963) (describing the ICRC’s activity in the early1960s in response the arrival of “several thousand Tibetan refugees at the Indo-Nepalese frontier”).

27 FORBES, supra note 10, at 37.28 Tibet Justice Center interview with Samdup Lhatse, former representative,

Tibetan Welfare Office, in Kathmandu (May 20, 2001).

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Delhi’s influence in the region by furthering ties with [Beijing].”32

In 1974, the Nepalese government ordered the remainingTibetan guerillas (about 1800 men) to shut down the operation. Toavoid violent conflict with the Nepalese and the endangerment of theTibetan refugee community in Nepal, the Tibetan administration inDharamsala agreed. The Dalai Lama then conveyed a personal, tape-recorded message to the guerilla forces requesting them to lay downtheir arms.33 The disbandment of the Mustang guerilla forces createda second population of Tibetan refugees that required resettlement.Trained for war, however, this group, like those who fled in the after-math of the 1959 Uprising, did not possess the knowledge or meansto establish new settlements with long-term economic viability.34

These two groups comprised the first caseload of Tibetan refugees inNepal and established the twelve major Tibetan refugee settlements.

V. Establishment and Development of the Settlements

In the early 1960s, the Nepalese government arranged to provide thefirst caseload of Tibetan refugees with land. It established four “tem-porary” settlements: (1) Chialsa, in the Solu Khumbu mountainrange east of Kathmandu; (2) Tashi Palkhiel, on the outskirts ofPokhara; (3) Dhorpatan, in western Nepal; and (4) Jawalakhel, onthe southern edge of Kathmandu. The Nepal Red Cross (NRC),founded in 1963, purchased the land for these settlements withfunds donated by UNHCR.35 Apart from their inability to afford

located in the remote northwesternKingdom of Mustang, which receivedcovert support from the United StatesCentral Intelligence Agency (CIA).29

From this base, Tibetans, primarilyformer residents of the province ofKham, carried out guerilla strikesagainst the PLA. For about ten years,the CIA funded military training forTibetan guerillas, including in “cam-ouflage, spy photography, guns, andradio operation,”30 and providedthem with weapons and other equip-ment to sustain the Mustang base.By the late 1960s, however, the U.S.government’s support for this covertoperation dwindled, and the CIAgradually discontinued aid to theguerillas.31 At about the same time,Nepal began to seek a closer rela-tionship with China because “[n]olonger fearful, as it had been in theearly 1960s, of a Chinese attack,Nepal now wished to counter New

A former member of the Khampa

guerilla force in Tibet, the Chinese

government imprisoned this man

for more than twenty years during

and after the Cultural Revolution.

After his release, he worked as a

primary school teacher for many

years in an effort to teach Tibetan

children about Tibet's true

history, and in 1998, fled Tibet with

the intention of informing

the United Nations about its plight.

Ro

bert

Slo

ane,

June

199

8

29 See generally JOHN KENNETH KNAUS, ORPHANS OF THE COLD WAR: AMERICA

AND THE TIBETAN STRUGGLE FOR SURVIVAL (1999); Ramananda Sengupta, TheCIA Circus, Tibet’s Forgotten Army: How the CIA Sponsored and Betrayed Tibetans ina War the World Never Knew About, OUTLOOK, Feb. 15, 1999; Paul Salopek, Howthe CIA Helped Tibet Fight Their Chinese Invaders, CHI. TRIBUNE, Jan. 25, 1997.Mustang, while theoretically a part of Nepal, remained a de facto independent king-dom at this time. Its remote location and traditional independence made Mustangessentially ungovernable from Kathmandu. See FORBES, supra note 10, at 149.30 Salopek, supra note 29, at 2.31 KNAUS, supra note 29, at 308. United States support for the Tibetan govern-ment-in-exile ceased altogether by 1974, when the government cut off all subsi-dies to the Dalai Lama’s government. Id. at 310.

32 JOHN F. AVEDON, IN EXILE FROM THE LAND OF SNOWS 125 (1979).33 See KNAUS, supra note 29, at 300-302; AVEDON, supra note 32, at 126-28.34 See FORBES, supra note 10, at 151-52.35 Tibet Justice Center interview with T.R. Onta, Executive Director, Nepal RedCross, in Kathmandu (June 11, 2001). The ICRC closed its office in Nepal inabout 1963. The Swiss Red Cross, however, remained for many years and contin-ued to assist the refugees. Before its formal legal establishment in 1964, made pos-sible by Nepal’s ratification of the Geneva Conventions of 1949, the Nepal RedCross contributed to these operations on an ad hoc basis. Id.

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Nepalese society.39 Thereafter, the Swiss groups provided the resi-dents of the settlements with basic humanitarian aid, technical assis-tance, and vocational training. Other organizations, includingUSAID, the Protestant United Mission, the Nepal InternationalTibetan Refugee Relief Committee, the Norwegian RefugeeCouncil, and United Nations affiliates, such as the U.N. Children’sFund (UNICEF) and the World Health Organization (WHO),contributed additional aid in the form of medical care, primary schooleducation, construction of housing, and food rations.40 At about thesame time, the Tibetan government-in-exile recognized a need toestablish its own permanent representatives to administer the settle-ments. For each settlement, it appointed a “Welfare Officer.” Theseindividuals cooperated with the Tibetan government’s principal rep-resentative in Kathmandu to administer the settlements and lookafter the needs of their residents.41

UNHCR offered financial assistance to the ICRC and other aidorganizations from the outset. Its role expanded significantly, how-ever, in 1964. At that time, the High Commissioner, at the requestof the Nepalese government, sent an envoy, J.D.R. Kelly, to appraisethe situation. Kelly reported that Tibetan refugees remained in direneed of humanitarian assistance. In August 1964, the Nepalese gov-ernment authorized UNHCR to open an office in Kathmandu toserve as a liaison between the Tibetan community and the govern-ment.42 In 1965, the government asked UNHCR to begin to assistwith the resettlement of those Tibetans not already residing in oneof the initial camps.43 UNHCR remained actively involvedthroughout the 1960s and the early 1970s. Its role shifted over time.

the land at that time, Tibetan refugees did not enjoy the legal rightto purchase it. They required an intermediary to hold the land intrust for their use. The NRC served this critical function. It alsoenabled the Nepalese government to disavow any direct support forthe refugees in order to avoid jeopardizing its tenuous relationshipwith China. The result, as the NRC’s present executive directorremarked, was that the NRC aided the refugees “with the [tacit] sup-port of the government,” but “not exactly for the government.”36 By1969, seven Tibetan settlements had been established in Nepal.37

As it became clear the their exile would not be short-term, theTibetan government sought to bring the refugees scattered through-out Nepal together in the newly established settlements. ShanmoPalchung, an elder Tibetan at the Tashi Ling Settlement in Pokhara,recalled that in 1964 Tibetan officials asked him to gather therefugees temporarily settled at encampments near the border andbring them to Pokhara. He arrived in Pokhara that year with 377Tibetan refugees from throughout Nepal and then petitioned theNRC to purchase land for them from the Nepalese government. TheNepal Red Cross “gave [us] land for living and agriculture,” he said,“but it was bad [and undeveloped] land”; and in the first year, sixtyrefugees, living without shelter, died from exposure to the heat andmonsoon rains.38 The Nepalese government soon recognized that itmust take steps to make the refugee settlements self-sufficient.

In 1964, Nepal asked the Swiss government—acting throughthe Swiss Red Cross and the Swiss Association for TechnicalAssistance—to help to resettle the refugees and administer the set-tlements. On November 22, 1964, the two governments enteredinto an agreement stipulating the main goals of the settlements:long-term economic self-sufficiency and gradual integration into

36 Tibet Justice Center interview with T.R. Onta, Executive Director, Nepal RedCross, in Kathmandu (June 11, 2001).37 TIBETANS IN EXILE, 1959-69, supra note 26, at 140.38 Tibet Justice Center interview with Shanmo Palchung, Tashi Ling Settlement,in Pokhara (May 28, 2001).

39 FORBES, supra note 10, at 51.40 See HOLBORN, supra note 25, at 744-46; YEFIME ZARJEVSI, A FUTURE

PRESERVED: INTERNATIONAL ASSISTANCE TO REFUGEES 198-99 (1988); TIBETANS

IN EXILE, 1959-1969, supra note 26, at 138; FORBES, supra note 10, at 50-51.41 TIBETANS IN EXILE, 1959-1969, supra note 26, at 139.42 See HOLBORN, supra note 25, at 746.43 FORBES, supra note 10, at 51.

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its tourist industry. This, too, created some opportunities forTibetan entrepreneurs. Restrictions on their rights to own property,travel, register businesses, and work, however, prevented them fromsecuring a strong foothold in the tourist industry.

Today, more than one dozen Tibetan settlements exist in Nepal,including Jawalakhel, Boudha, Swayambunath, and Jorpatia, in thevicinity of Kathmandu; Jampaling, Paljorling, Tashi Ling, and TashiPalkhiel, in the Pokhara region; and Dhorpatan, Chialsa, Chairok,Shabrus, and Lumbini, in the northern regions of Nepal. The major-ity of these were established either in the early to mid-1960s or in1974, when the Nepalese government terminated the Mustangguerilla operation. Six of the settlements rely on handicraft industries,four sustain themselves by agriculture, and the remainder are “self-reliant,” meaning their residents work individually in various jobs.50

Nepal, with the aid of foreign governments and private donors,thus succeeded in resolving the immediate humanitarian crisis pro-voked by the mass exodus of Tibetans in the aftermath of China’sannexation of Tibet and the 1959 Lhasa Uprising. But the prospectof a long-term and durable solution that led UNHCR to close itsKathmandu office in 1973 has proven elusive. Because of the isola-tion of the settlements and their residents from mainstreamNepalese society, local integration of the Tibetan refugee populationhas been minimal. Tibetans who were resettled in the 1960s and1970s are permitted to remain in Nepal, but their legal status isambiguous and their financial situation precarious. Without therights to own property and businesses, to travel, and to work freelyin industries and vocations outside the settlements, Tibetans resid-ing in the settlements remain economically and socially alienatedfrom Nepalese society. With the notable exception of some Tibetansin the carpet industry, which has been in decline in recent years, rel-atively few of the refugees in the settlements have been able to

44 HOLBORN, supra note 25, at 753.45 FORBES, supra note 10, at 62.46 TIBETANS IN EXILE, 1959-1969, supra note 26, at 141.47 FORBES, supra note 10, at 65.48 Tibet Justice Center interview with T.R. Onta, Executive Director, Nepal RedCross, in Kathmandu (June 11, 2001); see also FORBES, supra note 10, at 50.49 FORBES, supra note 10, at 71.

Initially, UNHCR focused on providing urgently needed emergencyrelief; in later years it began to search for more permanent solutions.In 1973, however, UNHCR discontinued its assistance program forTibetan refugees and closed its Kathmandu office. It concluded thatNepal was well on its way to achieving a durable solution to theproblem through local integration.44

In the early years, Tibetans worked to ensure the long-term avail-ability of basic necessities for the settlements. With the assistance ofnon-governmental organizations, they built roads, homes, schools,and medical facilities.45 Thereafter, each settlement began to establishindustries with which to sustain itself. These included, for example,agriculture, handicraft production, and carpentry. But the refugeesachieved their greatest financial success in the carpet industry. Swissaid workers first encouraged the development of this trade at theJawalakhel, Chialsa, and Tashi Palkhiel settlements. In 1966, the fac-tories were converted into private companies managed, though notowned, by the Tibetan refugees themselves.46 By the early 1980s, theTibetan carpet industry had “evolved into the primary source ofincome for the entire Tibetan community in Nepal.”47 By the late1980s, it had become the largest handicraft industry and the second-largest earner of foreign currency in Nepal.48

Some Tibetans also established private shops, hotels, and restau-rants, particularly during the first two decades of their exile. Until thelate 1970s, Tibetans in Nepal, by contrast to those in India, “did notneed any legal document or down payment to open their stores.”49

The mass exodus of Tibetans in the late 1960s and early 1970s alsocoincided with Nepal’s economic expansion and the development of

50 TIBETAN WELFARE OFFICE, KATHMANDU, THE STATE OF TIBETAN REFUGEES IN

NEPAL (1999).

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TAR and “religious pilgrims” to cross the Tibeto-Nepalese borderwithout a passport or visa, provided they registered at the border.52

Nepal renewed this Agreement for another ten years in 1976.The Nepalese government’s laissez-faire approach toward

Tibetan refugees began to change and tighten in 1986. In that yearNepal and China executed a new treaty that significantly restrictedthe ability of Tibetans to travel through or into Nepal.53 Soon after,in 1987 and 1989, the Chinese government suppressed a series ofpro-Tibetan independence demonstrations in Lhasa. This led to aresurgence in the number of Tibetans fleeing into exile.

In 1989, pressure from the Chinese government and the grow-ing number of new arrivals led Nepal to initiate a strict border-con-trol policy.54 The Nepalese government made clear that it wouldhenceforth refuse to accept or recognize new Tibetan refugees.55 Atabout the same time, however, UNHCR reestablished an office in

improve their standard of living far beyond subsistence. The precar-ious status of the settlement residents highlights the need for a moredurable solution that either permits the refugees to acquire Nepalesecitizenship or affords them a more expansive set of rights consistentwith those ordinarily afforded to permanent resident aliens underinternational law.

VI. Nepal’s Shifting Approach to TibetanRefugees:The Treatment of New Arrivals

From 1959 to 1986, but particularly in the years before 1974, Nepalgenerally facilitated the work of foreign governments and humani-tarian aid organizations involved in helping to resettle the first waveof Tibetan refugees. The Nepalese government viewed the settle-ments as an efficient long-term solution to a potentially seriousrefugee crisis. It therefore maintained a largely laissez-faire approachtoward them. In 1975, UNHCR historian Louise Holborn laudedNepal for “provid[ing] for the survival of thousands of Tibetanrefugees” and giving them “the possibility of becoming contributingmembers of the societies of their host countr[y] while at the sametime preserving their own identity.”51

Before 1986, the Nepalese government also tended to toleratethe arrival of new refugees for several reasons: It lacked the practicalability to enforce a strict border-control policy; fewer new refugeesarrived during China’s Cultural Revolution (approximately 1966-1979) because the Chinese government then maintained strict con-trol over the movement of the Tibetan population; and in any eventthe Nepalese government did not perceive the number of newlyarriving Tibetan refugees as a threat or a diplomatic liability duringthese years. The 1966 Agreement on Trade, Intercourse, and RelatedQuestions Between the Tibet Autonomous Region (TAR) of Chinaand Nepal permitted Tibetans living in the border regions of the

51 HOLBORN, supra note 25, at 753.

52 Agreement on Trade, Intercourse, and Related Questions Between the TibetAutonomous Region of China and Nepal, supra note 20, arts. 1(3)-(4).53 Agreement on Trade, Intercourse, and Related Questions Between the TibetAutonomous Region of China and Nepal, P.R.C.-Nepal, Aug. 1, 1986, arts. 1(3)-(5), reprinted in NEPAL’S RELATIONS WITH INDIA AND CHINA: DOCUMENTS, 1947-1992, supra note 20, at 1381-86.54 In 1989, a U.S. congressional delegation visited Nepal to assess the situation forTibetan refugees. Its report to Congress noted that:

The influence of N[e]pal’s powerful neighbor, China, was pervasive.(Nepal receives substantial development assistance from China, and,indeed coinciding with our stay in Nepal, a visiting Chinese delegationwas meeting to reevaluate the China-Nepal border agreements.) The[Nepalese Foreign] Secretary concluded that the “refugee question is not alegal question and not a humanitarian operation; it is a political question.”

Congressional Staff Delegation Report on Current Status of Tibetan Political, Refugee, andHuman Rights Problems, 135 CONG. REC. E1913-01, at *E1915 (May 25, 1989).55 Tibet Justice Center interviews with Samdup Lhatse, former representative,Tibetan Welfare Office, in Kathmandu (May 20, 2001); and John Dyson,Political and Economic Officer, United States Embassy, in Kathmandu (May 23,2001); see also U.S. COMM. FOR REFUGEES, COUNTRY REPORT: NEPAL (2001), at<http://www.refugees.org/world/countryrpt/scasia/nepal.html> (visited Sept. 17,2001); Barbara Crosette, Tibetans Fear Loss of Safe Haven in Nepal, N.Y. TIMES,May 7, 1989, at 14.

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Legal Overview

I. International Law

All persons in need, regardless of their immigration status, share cer-tain basic human rights under international law. The UniversalDeclaration of Human Rights (UDHR), which proclaims “a com-mon standard of achievement for all peoples and all nations,”57 pro-hibits discrimination on the grounds of national origin and providesthat all persons shall enjoy the right “to seek and enjoy in othercountries asylum from persecution.”58 Nepal is also a party to threetreaties that guarantee certain rights and protections to all persons,including refugees, within its borders: the International Covenanton Civil and Political Rights (ICCPR),59 the International Covenanton Economic, Social, and Cultural Rights (ICESCR),60 and theConvention on the Rights of the Child (CRC).61

In general, the ICCPR’s provisions protect not only citizens of thestate party, but “all individuals within [the state party’s] territory and sub-ject to its jurisdiction.”62 The ICCPR guarantees freedom of thought,conscience, religion, expression, and peaceful assembly.63 Article 24 alsoextends to every child the right to acquire a nationality.64 The ICESCR

57 Universal Declaration of Human Rights, pmbl., G.A. Res. 217A, U.N. GAOR,3d Sess., pt. I, at 71, U.N. Doc. A/810 (1948).58 Id., art. 14; see also id., art. 2 (prohibiting discrimination of any kind withrespect to all rights recognized in the UDHR). 59 International Covenant on Civil and Political Rights, Dec. 19, 1966, 999U.N.T.S. 171.60 International Covenant on Economic, Social, and Cultural Rights, Dec. 19,1966, 993 U.N.T.S. 3.61 Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 44.62 ICCPR, art. 2.63 Id., arts. 18, 19, 21.64 Id., art. 24(3) (“Every child has the right to acquire a nationality.”). The appli-cation of this principle to the children of refugees is not altogether clear from the

Kathmandu to assist Nepal with its Bhutanese refugee crisis. Withthe tacit approval of Nepal’s Ministry of Home Affairs, UNHCRalso began to facilitate the transit of newly arriving Tibetan refugeesthrough Nepal to India. The funds for this informal and low-profileoperation initially came from the United States, which provided an“infusion of $100,000 in 1991” to support the “refugee protectionand processing program.”56

* * * *The circumstances and legal status of Tibetans residing in Nepal,

and the current operation of this informal “protection and process-ing program,” are the twin subjects of this report.

56 Congressional Staff Trip Report on Tibetans in Exile, 138 CONG. REC. S12732-02,at *S12734 (Aug. 12, 1992).

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side the country of his nationality and is unable or,owing to such fear, is unwilling to avail himself ofthe protection of that country; or who, not having anationality and being outside the country of his for-mer habitual residence…is unable, or owing to suchfear, is unwilling to return to it.71

An asylum seeker is a person who seeks refugee status. Asylumseekers should enjoy the same rights as refugees until their status hasbeen fairly determined.72

The Refugee Conventions guarantee refugees a number ofrights, including freedom of conscience, movement, and religion,protection from discrimination, and the right to acquire identitypapers.73 Most critically, Article 33 of the 1951 Convention forbidsthe “return (‘refouler’) [of ] a refugee in any manner whatsoever tothe frontiers of territories where his life or freedom would be threat-ened on account of his race, religion, nationality, membership of aparticular social group or political opinion.”74 The principle of non-refoulement codified in Article 33 is the touchstone of the modernregime for the international protection of refugees. Many scholarsargue that it has become a rule of customary international law, bind-ing on all states regardless of their express treaty obligations.75 While

71 1951 Convention, art. 1(A)(2).72 See UNHCR, HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING

REFUGEE STATUS, ¶ 28, U.N. Doc. HCR/IP/4/Eng. (1979).73 1951 Convention, arts. 3, 4, 26, 27.74 Id., art. 33.75 See L. SOHN AND THOMAS BUERGENTHAL, THE MOVEMENT OF PERSONS ACROSS

BORDERS 123 (1996) (stating that non-refoulement “has become a rule of customaryinternational law”); see also Elizabeth E. Ruddick, The Continuing Constraint ofSovereignty: International Law, International Protection, and the Internally Displaced, 77B.U.L. REV. 429, 448 n.94 (1997) (citing GUY S. GOODWIN-GILL, THE REFUGEE IN

INTERNATIONAL LAW 167 (2d ed. 1996) and Paul Weiss, The International Protectionof Refugees, 48 AM. J. INT’L L. 193, 198-99 (1954)); Joan Fiztpatrick, Revitalizing the1951 Refugee Convention, 9 HARV. HUM. RTS. J. 229, 251 (1996); Guy S. Goodwin-Gill, Non-Refoulement and the New Asylum Seekers, 26 Va. J. Int’l L. 899, 902 (1986);

guarantees the rights to work, an adequate standard of living, education,and the highest attainable standard of health.65 But the ICESCR recog-nizes state resource constraints and therefore provides that “[d]evelopingcountries…may determine to what extent they w[ill] guarantee the eco-nomic rights recognized in the present Covenant to non-nationals.”66 TheCRC extends a similar catalogue of rights to “each child within [a stateparty’s] jurisdiction without discrimination of any kind.”67 The CRC rec-ognizes the right of each child both to “preserve his or her identity,including nationality” and to acquire a nationality.68 This right, accordingto UNICEF, “renders questionable legislation that does not allow chil-dren to acquire full nationality from significant periods of residence.”69

Refugees and Asylum Seekers. Beyond the rights guaranteed to allpersons by human rights treaties of general application, refugees andasylum seekers enjoy special protections under international law byvirtue of two treaties: the 1951 Convention Relating to the Status ofRefugees and the 1967 Protocol Relating to the Status of Refugees(collectively, the Refugee Conventions).70 The 1951 Conventiondefines a refugee as any person who:

owing to a well-founded fear of being persecuted forreasons of race, religion, nationality, membership ofa particular social group or political opinion, is out-

ICCPR’s language. But at a minimum, it seems clear that children born to refugeeparents who enjoy no right to the nationality of the state of their parent’s originnor to that of their host state are effectively deprived of the right to acquire anationality in violation of article 24(3).65 ICESCR, arts. 6, 11, 12, 13.66 Id., art. 2.67 CRC, art. 2.68 Id., arts. 8, 7.69 UNICEF, IMPLEMENTATION HANDBOOK FOR THE CONVENTION ON THE RIGHTS

OF THE CHILD 112 (1998).70 Convention Relating to the Status of Refugees, July 28, 1951, 1989 U.N.T.S.150 (1951 Convention); Protocol Relating to the Status of Refugees, Jan. 31,1967, 606 U.N.T.S. 267 (1967 Protocol).

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to flee into exile, the CAT forbids Nepal from repatriating Tibetanswho may be subjected to torture. Moreover, scholars argue thatArticle 3 should be interpreted broadly to protect persons appre-hended close to the border, not only those who have already crossedinto foreign territory.81 Any systematic, government-sanctioned pol-icy of refoulement of Tibetan refugees therefore raises serious con-cerns about Nepal’s compliance with its obligations under the CAT.

The extent to which any of the foregoing treaty obligations—andthe fundamental principle of non-refoulement—translate into practicalguarantees in Nepal is unclear. Nepal’s government, according to theU.S. State Department, has “no official refugee policy.”82 Nepal is not aparty to the Refugee Conventions, and Tibet Justice Center’s interviewswith Nepalese government officials suggest strongly that Nepal does notintend to subscribe to these treaties in the near future.83 On the otherhand, Director-General of Immigration Mainali remarked that, as a

PRACTICES: CHINA (Tibet Addendum) (2002); INTERNATIONAL COMMISSION OF

JURISTS (ICJ), TIBET: HUMAN RIGHTS AND THE RULE OF LAW 244-54 (1997);PHYSICIANS FOR HUMAN RIGHTS, STRIKING HARD: TORTURE IN TIBET (1997). See alsoTibet Information Network (TIN), News Update, New Increase in Deportations ofTibetans from Nepal, Dec. 24, 2001 (reporting that Tibetans returned to Chinese bor-der authorities are routinely detained for weeks or months, during which time they arecommonly subjected to beatings, interrogation, and other forms of maltreatment).81 See, e.g., Christine Tomuschat, A Right to Asylum in Europe, 13 HUM. RTS. L.J.257, 259 (1992) (“Article 3 [of the CAT] proceeds from the assumption that gov-ernmental authorities surrendering a person to the authorities of another State thathabitually practices torture would themselves become accomplices of the crime oftorture. In that perspective, the subtle legal distinction between returning someonewho has already put his foot on the territory of the desired host State, and pre-venting another person from performing that symbolic act becomes immaterial.”).82 U.S. DEP’T OF STATE, 2000 COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES:NEPAL § 2(d) (2001).83 Foreign Minister Bastola remarked candidly: “If we sign the [RefugeeConventions], we are under certain international obligations that will have to be ful-filled—and that may not be practical given the situation on both the north and southof our border [respectively, China and India]…South Asia is an area where you havea lot of ethnic conflict, cross-border migration, and other refugee-related issues. Sowhen you are in this situation, maybe you [i.e., Nepal] cannot have such an open andliberal refugee policy.” Tibet Justice Center interview with Chakra Prasad Bastola,Minister, Ministry of Foreign Affairs, in Kathmandu (May 25, 2001).

Nepal has not ratified the Refugee Conventions, it serves as anobserver state on UNHCR’s Executive Committee and, as such,should respect UNHCR Executive Committee Conclusions.76

Moreover, the CRC obliges Nepal “to ensure that a child who isseeking refugee status…receive[s] appropriate humanitarian assis-tance,” and to this end, to work proactively with UNHCR andother intergovernmental and non-governmental organizations coop-erating with the United Nations.77

Nepal is also a party to the Convention Against Torture andOther Cruel, Inhuman, or Degrading Treatment or Punishment(CAT).78 Article 3 of the CAT prohibits the refoulement of any per-son to a “State where there are substantial grounds for believing thathe would be in danger of being subjected to torture.”79 Becausereports consistently show that Chinese authorities use torture againstTibetans perceived to be dissidents,80 including those who attempt

see, e.g., H. Knox Thames, India’s Failure to Adequately Protect Refugees, 7 HUM. RTS.BR. 20, 21 (1999). Customary international law requires a consistent and largely uni-form practice pursued by states because of a perceived legal obligation (opinio juris).RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 103 (1987). If non-refoulementis a rule of customary international law, then no nation, including Nepal, may forciblyrepatriate Tibetan refugees to China if there exists a reason to believe that their lives orfreedoms would be threatened. The so-called “persistent objector” rule permits statesthat vigorously object to the formation of a rule of customary international law toexempt themselves from its otherwise universally binding status. The level of protestby a state, however, must be highly visible and express during the evolution of the rule.See generally Jonathan I. Charney, The Persistent Objector Rule and the Development ofCustomary International Law, 56 BRIT. Y.B. INT’L L. 1 (1985). Nepal’s actions andstatements during the latter half of the Twentieth Century do not amount to a per-sistent objection to a customary norm against the refoulement of refugees.76 The Executive Committee, UNHCR’s governing body, passes resolutions annu-ally “intended to guide states in their treatment of refugees and asylum seekers”;and its resolutions, while “not legally binding, do constitute a body of soft inter-national refugee law.” HUMAN RIGHTS WATCH, LIVING IN LIMBO: BURMESE

ROHINGYAS IN MALAYSIA n.73 (2000).77 CRC, art. 22.78 Convention Against Torture and Other Cruel, Inhuman, and DegradingTreatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 113.79 Id., art. 3(1).80 See, e.g., U.S. DEP’T OF STATE: 2001 COUNTRY REPORTS ON HUMAN RIGHTS

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distinctions, and consequently, the constitutional guarantees avail-able to refugees remain minimal.

No statute or regulation of Nepal defines or even refers to“refugees.” The government has no official policy toward them.89

Tapan K. Bose, Director of the South Asia Forum for HumanRights, noted that “there is no formal process for acceptingrefugees…. [Refugees] have no legal status.”90 Nepalese law classifiesrefugees simply as aliens. The Immigration Act of 1992 prescribestheir treatment.91 The Act defines “foreigners” as all persons not cit-izens of Nepal.92 It states that “[n]o foreigners shall be allowed toenter into and stay in the Kingdom of Nepal without obtaining apassport and visa,” and it limits the entry of foreigners to “pre-scribed” routes.93 The Act also empowers immigration officers with-in the Ministry of Home Affairs to investigate infractions of theseregulations and to detain, fine, and deport persons charged withtheir violation.94 UNHCR said that in recent years Nepal has beenincreasingly enforcing these provisions against Tibetans seeking toreturn to Tibet via Nepal after briefly visiting India—typically forthe purposes of a pilgrimage or to visit relatives residing there.

89 U.S. DEP’T OF STATE, 2000 COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES:NEPAL § 2(d) (2001).90 Tibet Justice Center interview with Tapan K. Bose, Director, South Asia Forumfor Human Rights, in Kathmandu (June 7, 2001).91 Nepal Immigration Act, 2049 (1992) (amended by Immigration (FirstAmendment) Act 2050 (1994)). This statute replaced the Foreigners Act of 1958,which the government promulgated in order to create “arrangements for restraining,prohibiting, and regularising the entry, presence, or departure of foreigners withinthe Kingdom of Nepal.” Foreigners Act § 1 (1958). This Act gave the governmentbroad latitude to arrest, detain or intern foreigners; to restrict their movements andactivities; and to confiscate their property. See id. §§ 3-4. The Immigration Act isslightly less restrictive, but it still grants the government broad administrativeauthority over aliens. See SURYA DHUNGEL ET AL., COMMENTARY ON THE NEPALESE

CONSTITUTION 86 (1998) (describing the government’s broad discretion to regulatealiens’ entry into Nepal and to prescribe rules for their conduct within its borders).92 Immigration Act § 2(b).93 Id. §§ 3(1), 3(5).94 Id. § 9.

member of the United Nations, the government ordinarily will “respectUNHCR policy” on “humanitarian grounds.”84 For Tibetans, thisapproach to refugee issues translates in practice into the informalarrangement or “gentleman’s agreement” discussed in detail below.

Kapil Shrestha, Secretary of Nepal’s Human Rights Commission,told Tibet Justice Center that despite Nepal’s accession to more thanone dozen multilateral human rights treaties, “at the level of imple-mentation, it is lagging far behind. Practically, it leaves much to bedesired.”85 The ICCPR, ICESCR, and CRC guarantee concreterights that, in theory if not yet in practice, extend to all Tibetanrefugees entering or residing in Nepal.

II. Nepalese Law

Nepal’s Constitution, promulgated in 1990 after King Birenda legal-ized the formation of political parties, for the most part protects onlycitizens. They enjoy rights to equality before the law, non-discrimi-nation, expression and assembly, freedom of movement, freedom toengage in trade, and to own and transfer property.86 Non-citizens—all “persons”—enjoy a more limited set of rights. These include therights to equal protection, religious freedom, and protection fromexpropriation of property.87 But they do not include freedom ofexpression, freedom of movement, and the right to acquire or ownproperty. During the drafting of the 1990 Constitution, interna-tional NGOs urged Nepal to avoid distinctions between citizens andnon-citizens for purposes of fundamental guarantees such as speech,association, and movement.88 But the government insisted on these

84 Tibet Justice Center interview with Umesh Prasad Mainali, Director-General,Department of Immigration, in Kathmandu (May 21, 2001).85 Tibet Justice Center interview with Kapil Shrestha, Secretary, Nepal HumanRights Commission, in Kathmandu (June 12, 2001).86 NEPAL CONST. arts. 11(1)-(2), 12(2)(d), 12(e), 17(1).87 Id., arts. 11(1), 12(1), 17(2).88 INTERNATIONAL HUMAN RIGHTS LAW GROUP, TOWARD A NEW CONSTITUTIONFOR NEPAL ix (1990).

The Status of Tibetans Residing in Nepal

I. Introduction

By 1989, the Nepalese government ceased entirely to permit newlyarriving Tibetan refugees to remain in Nepal. This created two classesof Tibetans in Nepal: (1) residents who entered Nepal before 1989and their children, the subject of this section of the report; and (2)new arrivals with no right to remain in Nepal, the subject of the fol-lowing section.

Nepal’s new policy reflected in part the heightened pressure placedon Nepal by the Chinese government in the late 1980s. China’s eco-nomic development of Tibet during the 1980s brought a massive influxof Chinese settlers, including cadres, engineers, traders, and small-busi-ness owners. By 1987, Chinese migration and reinvigorated politicalrepression in Tibet caused political tensions to rise. Expressions of sup-port for the Dalai Lama and his “Five-Point Peace Plan” precipitatedlarge demonstrations, which China crushed with military force. Theseculminated in the Tibetan protest of March 4, 1989, just three monthsbefore the Tiananmen Square Massacre of June 4, 1989. Shortly there-after, Beijing declared martial law in Lhasa.95 The heightened repressionin Tibet during this period caused a dramatic increase in the number ofTibetans fleeing persecution. Because China perceived these Tibetans asdissidents and traitors, it sought to prevent their flight to India via Nepalas part of its campaign to “quell the counter-revolutionary rebellion.”96

China asked Nepal to cooperate.97

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“[T]hose returning from India are often arrested and fined under the[Immigration Act]. But they can’t pay their fine.”

The domestic legal framework for the protection and processingof refugees in Nepal is therefore minimal. Nepalese law does not rec-ognize refugees or provide them with rights to seek protection, asy-lum or legal residence. Tibet Justice Center’s interviews with officialsat the Ministry of Home Affairs confirmed that the absence of a for-mal legal framework is not an oversight; it reflects a deliberate poli-cy decision perceived to be in Nepal’s geostrategic interest. At thesame time, the Nepalese government does cooperate with UNHCRto handle its two major refugee populations: Tibetans and ethnicNepalese refugees from Bhutan. The informal “gentleman’s agree-ment” between Nepal and UNHCR for the transit of Tibetanrefugees through Nepal allows UNHCR to continue to assistTibetan refugees without requiring the Nepalese government toincur unwanted obligations toward Tibetans. Because of Nepal’sstrong national interest in maintaining UNHCR’s overt assistancewith its Bhutanese refugee population, estimated at more than100,000, the Nepalese government also has much to gain by per-mitting UNHCR tacitly to continue to assist Tibetan refugees, anobjective supported by UNHCR and many foreign aid donors.

95 See generally ICJ, supra note 80, at 77-80.96 Statement by NPC Standing Committee Vice Chairman Ngapoi Ngawang Jigme ina Meeting with Ran Bahadur Thapa, Consulate-General of Nepal, BBC NEWS, Sept.6, 1989.97 See, e.g., Tibetan Nationality Official on Relations Between China and Nepal, BBCNEWS, Sept. 8, 1989.

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arrivals to settle in Nepal, it allows those who arrived in or before1989, and their children, to remain. The government does not deemthese Tibetans to be “refugees,” even though it has periodicallyissued some of them RCs that describe their nationality as “Tibetanrefugee.” But in response to Tibet Justice Center’s question about thenumber of permanent Tibetan refugees residing in Nepal, HomeSecretary Regmi replied: “They are not permanent residents; no one[of the Tibetans] is a permanent resident.”102 UNHCR, by contrast,made clear that it:

still consider[s] [legally resident Tibetans] “refugees,”but they do not need assistance. They are somehowself-sufficient. We look after them in discrete ways;for example, the kids of these refugees, when theyreach the age of [eighteen], they need to have anidentity document and receive a card like the onethat has been issued to their parents.103

Most such Tibetans live in the Kathmandu valley, generally inthe Boudha and Swayambunath regions on the outskirts of the cityor at the Jawalakhel settlement. The majority of the others reside inTibetan settlements located in or around Pokhara, Nepal’s second-largest city. The remainder live in isolated settlements such asNamgyaling, in Mustang, or Chialsa, near Paphlu.

Notwithstanding their long-term residence in Nepal, mostTibetans remain isolated from mainstream Nepalese society. Few canbecome Nepalese citizens. Their status remains uncertain and insecure

In the late 1980s, Nepal maintained a delicate political relation-ship with China. To promote its economy and solidify domesticpolitical stability, it sought to improve that relationship. At about thesame time, Nepal’s relationship with India began to deteriorate. In1988, Nepal purchased weapons from China without informingIndia, an action perceived by India as a deliberate diplomatic slight.On March 23, 1989, in retaliation for this breach of etiquette—andfor Nepal’s refusal to allow resident Indians to work there without apermit—India imposed a trade embargo on Nepal. It permitted onlyessential supplies to enter the country.98 Nepal responded by strength-ening its ties to China.

This drift toward a pro-China foreign policy caused Nepal toheighten its border security with Tibet and to cease to permitTibetans to enter and settle in Nepal. It also led the Nepalese gov-ernment to increase restrictions on the political and cultural activi-ties of Tibetans already residing in Nepal. In November 1989, theChinese Premier visited Nepal. Then-Prime Minister Marich ManSingh emphasized that Nepal has “always recognized that Tibet is anintegral part of China, and Nepal has always believed in the princi-ple of non-interference in the internal affairs of another country.”99

The following month, the Nepalese government cancelled a Tibetancultural festival and refused to permit Tibetans in Kathmandu tocelebrate the Dalai Lama’s receipt of the Nobel Peace Prize.100

Today, according to official estimates, about 20,000 Tibetansreside in Nepal.101 While the government does not permit new

98 Dhruba Adhikary, Nepal: Weathering the Storm, Widening the Horizon, INTER-PRESS SERV., Sept. 8, 1989.99 Nepalese Prime Minister Praises Chinese Premier’s Visit, XINHUA NEWS SERV., Nov.18, 1989.100 See Dalai Lama, Accepting Prize, Urges Peaceful Tibet Solution, N.Y. TIMES, Dec.11, 1989, at A14.101 U.S. DEP’T OF STATE, 2000 COUNTRY REPORTS ON HUMAN RIGHTS

PRACTICES: NEPAL § 2(d) (2001); Dalai Lama’s Representative Says Tibetans inNepal Number 20,000, BBC WORLDWIDE MONITORING, Mar. 12, 2000.Unofficial estimates, which include both illegal residents who arrived in Nepal

after 1989 and legal residents who lack an identity card to prove their status, placethe actual number of Tibetans in Nepal at least several thousand higher. SeeSuman Pradhan, Nepal-China: Absence of Tibetan Protests Brings Relief, INTER-PRESS SERV., May 17, 2001.102 Tibet Justice Center interview with Shree Kant Regmi, Secretary, Ministry ofHome Affairs, in Kathmandu (May 23, 2001).103 Tibet Justice Center interview with Roland-Francois Weil, Protection Officer,UNHCR, in Kathmandu (May 25, 2001).

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(a) has the ability to speak and write the national languageof Nepal

(b) has renounced citizenship of any other state(c) is a member of any profession in Nepal (d) has resided in Nepal for at least 15 years(e) is a citizen of a country that permits naturalized citizen-

ship to citizens of Nepal(f ) is of good moral character.106

Candidates for citizenship must also demonstrate that they havemade or can make a substantial contribution to science, philosophy,art, literature, world peace, the welfare of humanity, Nepalese indus-try, or economic improvement generally.107

Nepalese law therefore does not technically bar Tibetans fromacquiring citizenship. But government officials candidly conceded thatNepal does not want Tibetans to become citizens. Home SecretaryRegmi and Undersecretary Dhakal said—apparently mistakenly—thatthe law categorically does not permit refugees to acquire citizenship.Expressing a fear that naturalization would encourage Tibetans to assim-ilate and thereby threaten the Nepalese cultural identity, SecretaryRegmi remarked that repatriation rather than naturalization would bethe most desirable solution for Nepal’s Tibetan residents.108 Other offi-cials argued that Tibetans never relinquished their prior citizenship asrequired by the Citizenship Act. In any event the bottom line, as formerHome Minister Ser Bhadadur Duepa remarked to the NepaleseNational Assembly in 1993, is that “there is simply no policy of givingthe [Tibetan] refugees Nepalese citizenship.”109

because no law or regulation defines it. Home Secretary Regmidescribed this legal limbo, remarking that the Tibetans “are not per-manent residents….We provide a refugee identity card to them. Theyare [thus] easily identified. Once the Tibet problems are resolved, wewill repatriate them to Tibet.”104 Many resident Tibetans, however, par-ticularly the children of the original settlers, lack these identity cards or“RCs.” Without them, Tibetans enjoy little security from harassmentby officials and possess no proof of their right to remain in Nepal. Evenwith an RC, Tibetans cannot claim the protection of fundamentalrights such as freedom of speech and assembly. Nepal’s Constitutionguarantees these rights only to citizens.105 Nor can legally residentTibetans own property, incorporate a business, travel freely within thecountry or internationally, or participate freely in political and culturalactivities. Tibetans in Nepal are stateless—residents with no definedlegal status and severely limited political and economic rights, andnowhere else to go. In general, no country claims Tibetans in exile asnationals. While China periodically informs them that they may returnto “the Motherland,” it conditions this right of return on untenablerestrictions on their civil and political rights.

II. Citizenship

While Nepal’s Citizenship Act makes many Tibetan residents theo-retically eligible for citizenship, the government does not view citi-zenship as a viable option for Tibetans. Section 6 of the CitizenshipAct permits an adult to apply for citizenship if he or she:

104 Tibet Justice Center interview with Shree Kant Regmi, Secretary, Ministry ofHome Affairs, in Kathmandu (May 23, 2001).105 Home Secretary Regmi implied that it would not be feasible to grant legally res-ident Tibetans a more robust set of rights, in part because of Nepal’s vulnerablegeopolitical position between China and India. “Refugees cannot enjoy the samerights as citizens,” he remarked. “We give them the same kind of rights as you doin the [United] States.…But you do not have big neighbors [i.e., China andIndia].” Tibet Justice Center interview with Shree Kant Regmi, Secretary,Ministry of Home Affairs, in Kathmandu (May 23, 2001).

106 Nepal Citizenship Act, 2048 (1963) (as amended, 1989, 1992); see also NEPAL

CONST. art. 9(4) (setting forth similarly the conditions for the acquisition ofNepalese citizenship by a foreigner).107 Nepal Citizenship Act, 2048 (1963) (as amended, 1989, 1992).108 Tibet Justice Center interviews with Shree Kant Regmi, Secretary, and GaneshDhakal, Undersecretary, Ministry of Home Affairs, in Kathmandu (May 23, 2001).109 Tibetan Refugees Not to be Given Citizenship Certificate in Nepal, U.P.I., Aug. 10, 1993.

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resident of Tashi Palkhiel, said that he applied for citizenship inabout 1995 by submitting an application to the Pokhara office of theMinistry of Home Affairs, but “[t]hey showed me something in theConstitution and said, ‘You’re a refugee, you can’t get citizenship.’”116

Tibet Justice Center did not interview any Tibetan who had suc-cessfully acquired Nepalese citizenship through the naturalizationprocess established by the Nepal Citizenship Act.

Most Tibetans, however, never attempt to become citizens. Thereasons for this are twofold: First, most recognize that few, if any, legalavenues to citizenship exist; and second, some Tibetans feel that toacquire Nepalese citizenship would be to compromise or dilute theintegrity of the Tibetan national identity. The latter reason seems tobe more of a concern among older Tibetans. By contrast, severalTibetan interviewees under the age of thirty expressed a desire toacquire citizenship. Karma Samten, for example, a resident of thePaljorling Settlement, explained: “If I had Nepali citizenship, I wouldhave more rights.…I would be able to buy land, do business, andhave better options.”117 Kunga Gyatso, another resident of Paljorling,similarly remarked that, with citizenship, “you can own a building orbuy property or [do] anything.”118 For some second-generationTibetans, the benefits of citizenship thus appear to outweigh theconcerns expressed by older Tibetans about maintaining the integri-ty of the Tibetan national identity.

But most Tibetans interviewed by Tibet Justice Center did notdesire Nepalese citizenship. Shakya Honnkte Parkeanghuk, a residentof Tashi Palkhiel, captured this sentiment plainly: “I do not want tobecome a citizen of Nepal. I want to return to a free Tibet.”119 In part,

A few Tibetans manage to obtain citizenship. Tibetan womenwho marry Nepalese men, for example, automatically become citi-zens, but the converse is not the case, i.e., Tibetan men cannotobtain citizenship by marrying Nepalese women.110 While the CRCobliges Nepal to respect the rights of every child “to acquire anationality” and “to preserve his or her identity, including national-ity,”111 children born to Tibetan refugees in Nepal generally do nothave a right to acquire Nepalese citizenship; rather, they inherit theprecarious status of their parents. Only children of mixed marriageswhose fathers are Nepalese can become Nepalese citizens.112

Some Tibetans seek to acquire citizenship papers so that theycan purchase a business. But because the naturalization process iscumbersome, most Tibetans who need to own property or incorpo-rate a business find it easier to either purchase false citizenship papersor secure the cooperation of a Nepalese citizen in whose name titlewill be held.113 Karma Samten, a refugee who resides at the PaljorlingSettlement, said that citizenship papers cost about U.S. $2000 onthe black market.114 But purchasing citizenship papers illegally isrisky. Tsering Yanki, a refugee at Jawalakhel, explained that “[t]hesedays it is possible to make citizenship [papers for] Nepal, but it is notreal; it is a duplicate, and very risky. If the police catch you, you goto jail.” But to obtain citizenship through the legal process, she con-tinued, is even more difficult.115 Tsondu Tharchin, for example, a

110 Tibet Justice Center interviews with Shree Kant Regmi, Secretary, and GaneshDhakal, Undersecretary, Ministry of Home Affairs, in Kathmandu (May 23, 2001).111 CRC, arts. 7, 8.112 Tibet Justice Center interviews with Shree Kant Regmi, Secretary, and GaneshDhakal, Undersecretary, Ministry of Home Affairs, in Kathmandu (May 23,2001).113 Tibet Justice Center interview with Samdup Lhatse, former representative,Tibetan Welfare Office, in Kathmandu (May 20, 2001).114 Tibet Justice Center interview with Karma Samten, Paljorling Settlement, inPokhara (May 29, 2001).115 Tibet Justice Center interview with Tsering Yanki, Jawalakhel Settlement, inKathmandu (June 7, 2001).

116 Tibet Justice Center interview with Tsondu Tharchin, Tashi PalkhielSettlement, in Pokhara (May 30, 2001).117 Tibet Justice Center interview with Karma Samten, Paljorling Settlement, inPokhara (May 29, 2001).118 Tibet Justice Center interview with Kunga Gyatso, Paljorling Settlement, inPokhara (May 29, 2001).119 Tibet Justice Center interview with Shakya Honnkte Parkeanghuk, TashiPalkhiel Settlement, in Pokhara (May 30, 2001).

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threatens their long-term survival. Phuntsok, a fifty-seven-year-oldrefugee at Paljorling, acknowledged that for members of the Tibetanexile community today, seeking citizenship in their host country maybe the most viable, perhaps the only, alternative to statelessness. “NoTibetans want to be citizens of another country,” he said, “but circum-stances sometimes compel them to do so.”124 At this stage, the resilienceof the Tibetan exile community depends on the willingness of govern-ments, UNHCR, and the international community to begin to takesteps to address the precarious status of the Tibetan refugee populationsin Nepal and India by, among other things, advocating and supportingmeaningful local integration and third-country resettlement.

Third-country resettlement of Tibetan refugees already hasproven successful on a small scale. In the early 1960s, the Swiss RedCross facilitated the resettlement of about 1500 Tibetans toSwitzerland. Many achieved higher levels of education and thrivedeconomically, and about 2000 Tibetans now reside permanently inSwitzerland.125 Based on this initial positive experience, the DalaiLama approached the Canadian and U.S. governments during thelast years of Lyndon Johnson’s administration. At that time (approx-imately 1969 or 1970), Canada agreed to accept about 500Tibetans. But for reasons that remain unclear, the United States didnot then respond to the Dalai Lama’s request. In 1990, however, theU.S. Congress, with the support of Senator Ted Kennedy, andCongressmen Barney Frank, Charlie Rose, Ben Gilman, TomLantos, and John Porter, passed the Immigration Act of 1990, sec-tion 134 of which authorized the issuance of “1,000 immigrant visasto ‘displaced’ Tibetans living in India and Nepal.”126 Third-country

this widespread view originates in a now-defunct policy of the Tibetangovernment-in-exile, adopted in the aftermath of the 1959 exodus ofthe Dalai Lama and the thousands of Tibetans who followed him intoexile. At that time, the Tibetan government-in-exile believed that exilewould be short-term, and that the purpose of exile should not be toseek a new and better life in foreign lands, but to struggle to regaintheir country by any means available.120 The Tibetan government-in-exile thus adopted a policy discouraging naturalization. This policy isno longer in effect. By the early 1990s, the Tibetan government-in-exile had come to recognize that naturalization, far from eroding theTibetan national identity, provides greater opportunities, particularlyto Tibetan children, to achieve higher education, to express their polit-ical views freely, and to more effectively advance the Tibetan cause inthe international arena.121 But the bias against naturalization nonethe-less remains among many older Tibetans. “Until recently,” TibetanYouth Congress President Kelsang Phunstok explained, “the percep-tion was that you should remain refugees; citizenship was seen as abetrayal.”122 Younger Tibetans, too, while more pragmatic in theirviews, remained concerned that to exchange refugee status forNepalese citizenship—even were it legally feasible—would be tobetray their Tibetan identity. “I don’t want to obtain [Nepalese] citi-zenship,” insisted Jamyang Dorjee, a thirty-year-old resident of TashiLing. “I am Tibetan. How can I become Nepalese?”123 Most Tibetansinterviewed hoped to return to a free Tibet.

In reality, however, remaining stateless and without legal rightsleaves Tibetan refugees in a dangerously precarious situation that

120 Tibet Justice Center interviews with Phintso Thonden, former representative ofthe Dalai Lama to North America (1966-73) and India (1973-75) (Mar. 31,2002); Rinchen Dharlo, President, Tibet Fund (April 3, 2002).121 Tibet Justice Center interview with Rinchen Dharlo, President, Tibet Fund(April 3, 2002).122 Tibet Justice Center interview with Kelsang Phuntsok, President, Tibetan YouthCongress, in Kathmandu (May 24, 2001).123 Tibet Justice Center interview with Jamyang Dorjee, Tashi Ling Settlement, inPokhara (May 28, 2001).

124 Tibet Justice Center interview with Phuntsok, Paljorling Settlement, in Pokhara(May 29, 2001).125 See Rinchen Dharlo, A Brief History of Tibetans in North America, TIBETAN REV.,Oct. 1994, at 12, 13. (“[S]uch settlement projects contributed to the economic well-being of the larger Tibetan community. While Tibetans learned a great deal from liv-ing abroad, they were also able to preserve their identity and culture quite well and indoing so, they have become good representatives of the Tibetan people.”).126 Id. at 13-15.

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government agreed.130 But later that year it suspended the program,apparently because of a change in government. Subsequently, thecentral district officers (CDOs), lower-level functionaries in theMinistry of Home Affairs, sought to provide RCs to most Tibetansin the settlements in the Kathmandu valley. But officials evidentlydid not return to the Pokhara settlements after 1995. For this rea-son, particularly in Pokhara, Tibetans who had not been present in1995, or who subsequently reached the age of eighteen, continue tolack RCs.131 Many legal Tibetan residents in Nepal therefore lack anRC even though the Nepalese government’s policy is to provide RCsto all Tibetans who arrived before 1989 and their adult children.

The Department of Immigration requires that RCs be renewedannually. Nepalese officials generally visit the settlements once eachyear to extend the validity of RCs already issued, but except as notedabove, new RCs have not been issued. Tibetans not present at the timeof these visits must go to their local central district office to renew theirRCs. Dekyi Wangmo, a resident of Tashi Palkhiel, described the some-what erratic nature of the renewal process:

It is difficult to renew the Nepali refugee identitycards. Sometimes, officials come here, but sometimeswe have to go into town and wait for three to fourdays. To renew the card, we have to show our exist-ing identity, and the [central district] office alsomaintains a registration list. It would be much better

resettlement has therefore proved to be a viable and historically suc-cessful option. Much more could be done in this regard to provideTibetan refugees with a durable solution, assisting them to achievegreater stability and control over their lives.

III. Identity Cards (RCs)

Because Nepal does not grant Tibetans legal status, refugee identitycards (RCs) are critical for Tibetans residing in Nepal. RCs provide amodicum of security from harassment by authorities and, potential-ly, even expulsion to India. Director-General of Immigration Mainalisaid that RCs entitle Tibetans to “refugee status,” which allows suchTibetans to remain in Nepal with certain minimal rights, such as the(theoretical) ability to acquire a travel document.127 “Without anidentity card,” Home Undersecretary Dhakal remarked, “they[Tibetans in Nepal] are not refugees.”128 Again, however, it is impor-tant to emphasize that “refugee” is not a term of art in Nepal; it doesnot define a legal category of persons or provide persons so identifiedwith any status consistent with the Refugee Conventions.

Accounts vary, but it appears that the Nepalese government firstprovided documentation to Tibetan refugees in the mid-1970s. In1974, the government registered the former Mustang guerillas foradministrative and security purposes.129 In 1995, UNHCR urgedthe government to issue RCs to all legally resident Tibetans (thosewho arrived in or before 1989) above the age of eighteen, and the

127 Tibet Justice Center interview with Umesh Prasad Mainali, Director-General,Department of Immigration, in Kathmandu (May 21, 2000).128 Tibet Justice Center interview with Ganesh Dhakal, Undersecretary, Ministryof Home Affairs, in Kathmandu (May 23, 2001).129 Most older Tibetans told Tibet Justice Center that they received an RC in orabout 1974 and that the Nepalese government did not issue further documenta-tion until 1995. Jigme Wangdu, the settlement officer at Tashi Palkhiel, however,said that the government issued RCs twice prior to 1995. Tibet Justice Centerinterview with Jigme Wangdu, Settlement Officer, Tashi Palkhiel Settlement, inPokhara (May 29, 2001). Tibetan refugees related that the earlier cards, i.e., those

issued in or about 1974, contained numerous restrictions on movement withinNepal, including a general prohibition on travel from the Pokhara settlements tothe Kathmandu valley. Tibet Justice Center interview with Phuntsok, PaljorlingSettlement, in Pokhara (May 29, 2001).130 Tibet Justice Center interview with Samdup Lhatse, former representative,Tibetan Welfare Office, in Kathmandu (May 20, 2001).131 Legal residents interviewed at the Pokhara settlements of Paljorling, Tashi Ling,and Tashi Palkhiel said that they obtained RCs in 1995. By contrast, Tibetansresiding at the Jawalakhel Settlement in the Kathmandu valley related that thegovernment issued RCs in both 1995 and 1999.

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Without an RC, Tibetans cannot obtain documents to purchase amotorbike, apply for a driver’s license, travel freely within Nepal (tonon-restricted areas), or acquire a refugee travel document, which per-mits limited foreign travel. Karma Choezin, a resident of TashiPalkhiel, complained that “sometimes when we go by tourist bus toKathmandu, we need the identification card. Otherwise, they [theNepalese authorities] would take us off the bus.”135 Travel across theborder to India may also be difficult. Jigme Wangdu said that “[c]hil-dren [with no RC] who go across the border are asked, ‘Where are yougoing?’ If they don’t have an RC, there are problems.”136 This is a seri-ous concern because many children of Tibetans residing in Nepal trav-el to India to obtain an education in the schools run by the Tibetangovernment-in-exile. Individuals without an RC may also face obsta-cles to attending Nepalese schools and securing employment.Additionally, refugees said that Nepalese officials periodically come tothe settlements to check whether Tibetans there possess RCs.137 Thepolice sometimes suspect that Tibetans without RCs are new arrivalsremaining at the settlements illegally; at other times, the situationreportedly provides the officials with a means to extract minor bribes.

The Special Case of Children. Tibetan community leaders and NGOrepresentatives from the Pokhara area pointed to the lack of docu-mentation for adult children of resident Tibetans as one of the chiefproblems facing the Tibetan community in Nepal.138 The vast

132 Tibet Justice Center interview with Dekyi Wangmo, Tashi Palkhiel Settlement,in Pokhara (May 30, 2001). Dhondup Tsering similarly remarked that his “wishwas for the renewal of the RCs to be every five years, not every year.” Tibet JusticeCenter interview with Dhondup Tsering, Tashi Palkhiel Settlement, in Pokhara(May 30, 2001).133 Tibet Justice Center interviews with Karma Phuntsok, Paljorling Settlement, inPokhara (May 29, 2001); Dhondup Tsering, Tashi Palkhiel Settlement, in Pokhara(May 30, 2001).134 Tibet Justice Center interview with Dhondup Tsering, Tashi PalkhielSettlement, in Pokhara (May 30, 2001).

if the RCs were valid for a longer period of time thanjust one year.132

Renewal is particularly difficult for Tibetans not present on theofficial registration day and for those who reside outside the settle-ments because it is the settlement officers who generally confirm thestatus of the refugees and pay the fees on their behalf.133 SomeTibetans also reported that, outside of the settlements, immigrationofficials may delay the renewal process and extort bribes in exchangefor the required renewal stamp. Dhondup Tsering explained:

When the Nepalese officials come to the settlement, ittakes them ten hours to renew everyone’s ID. If peo-ple miss the opportunity to have their IDs renewedhere, then they have to go to an office in town. Intown, they have to pay 25 Rs for their renewal, plususually a bribe on the side….Otherwise, the officialswill say to come back the next day.134

UNHCR explained that “obtaining an identity card is a cumber-some process,” and “the [Nepalese] government makes more of aheadache for itself.” But UNHCR also emphasized that ensuring theefficient registration of legally resident Tibetans would be in the gov-ernment’s best interests. The registration process could enable the gov-ernment accurately to distinguish pre-1989 residents from new arrivals.

135 Tibet Justice Center interview with Karma Choezin, Tashi Palkhiel Settlement,in Pokhara (May 30, 2001).136 Tibet Justice Center interview with Jigme Wangdu, Settlement Officer, TashiPalkhiel Settlement, in Pokhara (May 30, 2001).137 Tibet Justice Center interview with Karma Phuntsok, Paljorling Settlement, inPokhara (May 29, 2001).138 Community and NGO leaders in Pokhara presented Tibet Justice Center withan appeal that listed, among other concerns, that “Tibetans have identity cardsissued by his Majesty’s Govt. of Nepal, but our children reaching adulthood havenot [been] issued the identity cards, which causes difficulties to travel.” TibetJustice Center interviews, roundtable discussion with Tibetan community andNGO representatives, in Pokhara (May 30, 2001).

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Some older Tibetans also lack documentation. Settlement OfficerJigme Wangdu estimated that between forty and fifty individuals inthe Tashi Palkhiel Settlement never received an RC because they wereaway from the settlement on the date the government distributedthem.141 At Jawalakhel, where the government reportedly issued RCsagain in 1999, Settlement Officer Thinley Gyatso said that abouttwenty individuals do not possess RCs for the same reason; andbetween forty and fifty young people, who had been under the age ofeighteen at the time of distribution, also lack RCs.142

The Tibetan government-in-exile, UNHCR, and the UnitedStates government have all made attempts to call the Nepalese govern-ment’s attention to this problem. Settlement officers informed TibetJustice Center that despite repeated requests, they have been unable toobtain the RCs for the children of settlement residents.143 Individualrefugees like Karma Sonam Tsering, a legal resident not present at TashiPalkhiel at the time the Nepalese government last distributed RCs in1995, said he submitted personal requests to the Department ofImmigration on several occasions without success.144 UNHCRRepresentative Dupoizat emphasized that UNHCR continually urgesthe CDOs (branches of the Home Ministry) to issue RCs to Tibetanswho come of age, but “we are not very satisfied with how it’s going, andsome people fall through the cracks.”145 According to former U.S.Assistant Secretary of State Taft, last time she visited Nepal in 2000, theNepalese government had committed to issuing RCs to all Tibetans

majority of Tibetans residing legally in Nepal without RCs areyoung men and women. Without RCs, their futures are bleaker thanthose of their parents. Unable to seek higher education or employ-ment or to travel freely within Nepal, they are fast becoming theTibetan community’s greatest concern.

The children of Tibetan residents are entitled to receive RCs atthe age of eighteen.139 But in practice, most young adults find them-selves unable to obtain RCs. Moreover, children born after 1999 inthe Kathmandu settlements (and after 1995 in the Pokhara settle-ments) are not listed on their parents’ RCs. They therefore possessno official evidence of their legal right to remain in Nepal. This cre-ates serious problems because, as one Tibetan remarked, “[t]he chil-dren of Tibetans who are legal residents have no status. They can goto school, but need identification at the secondary level. The onlyway out for them is to purchase false documents and pretend; this isthe only way to avoid being stateless.” Many interviewees expressedgrave concern about their children’s lack of legal status. BudharpoYichung of Tashi Palkhiel said that he frequently worries about hischildren’s future:

My children do not have refugee identificationcards. This is the main problem. Children are nowabove eighteen years old, and they still do not havean ID card. If they don’t have an ID card, they haveno identity. They just stay here, and they have neverbeen to another place.140

139 While Nepalese government officials, Samdup Lhatse, and most refugees inter-viewed at the settlements said that children could apply for RCs at the age ofeighteen, UNHCR Protection Officer Weil and Paljorling Settlement OfficerNorbu Dorje said that children become eligible for RCs at the age of sixteen. TibetJustice Center interviews with Samdup Lhatse, former representative, TibetanWelfare Office, in Kathmandu (May 20, 2001); Roland-Francois Weil, ProtectionOfficer, UNHCR, in Kathmandu (May 25, 2001); Norbu Dorje, SettlementOfficer, Paljorling Settlement, in Pokhara (May 29, 2001).140 Tibet Justice Center interview with Bhudharpo Yichung, Tashi PalkhielSettlement, in Pokhara (May 30, 2001).

141 Tibet Justice Center interview with Jigme Wangdu, Settlement Officer, TashiPalkhiel Settlement, in Pokhara (May 30, 2001).142 Tibet Justice Center interview with Thinley Gyatso, Jawalakhel Settlement, inKathmandu (June 7, 2001).143 Tibet Justice Center interviews with Jigme Wangdu, Settlement Officer, TashiPalkhiel Settlement, in Pokhara (May 30, 2001); Norbu Dorje, SettlementOfficer, Paljorling Settlement, in Pokhara (May 29, 2001)144 Tibet Justice Center interview with Karma Sonam Tsering, Tashi PalkhielSettlement, in Pokhara (May 30, 2001).145 Tibet Justice Center interview with Michel Dupoizat, Representative,UNHCR, in Kathmandu (May 25, 2001).

entitled to one.146 At the time of Tibet Justice Center’s research, the gov-ernment had yet to follow through on this commitment.

Notwithstanding the foregoing problems, the Nepalese govern-ment does not appear to be unwilling to issue RCs. Bureaucratic inef-ficiencies, rather than any desire to withhold status from Tibetansresiding legally in Nepal, appears to be the principal reason for delay.Jawalakhel Settlement Officer Thinley Gyatso said that while heengaged in several promising discussions with the central district offi-cers (CDOs) for Kathmandu about having RCs issued for Tibetanswho have reached the age of eighteen, he feared that the upheavalcaused by the June 2001 massacre of the Nepalese royal family woulddelay the process once again.147 Tibetan representatives of the Pokharasettlements emphasized that the United States, acting through theKathmandu Embassy or the State Department’s Special Coordinatorfor Tibet—currently, U.S. Under Secretary for Global Affairs PaulaDobriansky—could remedy this situation by requesting that theNepalese government implement its own policy: to issue RCs to alllegally resident Tibetans and their children.148

IV.Travel Documents and Freedom of Movement

A. Restrictions on Movement Within Nepal

Even with an RC, Tibetan residents in Nepal enjoy only limited free-dom of movement. The government prohibits their travel to certainregions, particularly those near the northern border with China

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(Tibet). Most Tibetans said that the authorities seldom ask for theirRCs while traveling in unrestricted areas of Nepal. But in prohibitedareas, Tibetans said that they risk arrest and even deportation. Forexample, the Nepalese police arrested Lanchup, a member of theTibetan National Ex-Political Prisoners Association, in December2000 because he traveled to a restricted area without a permit. Theauthorities held him in custody until he paid a “fine” of 100,000 Rs(approximately $1,300). He told Tibet Justice Center that he knew ofa Tibetan family that had been deported for the same violation.149

Several other members of the Tibetan National Ex-Political PrisonersAssociation remarked that some refer to refugee identification cards injest as “prison identification cards,” because they impose such restraintson freedom of movement in Nepal.150 Tibetans without RCs face evengreater restrictions on their movement and may suffer harassment orthe extortion of bribes if apprehended.

B. Restrictions on International Travel

By law, Tibetan residents cannot obtain a Nepalese passport. To travelinternationally, Tibetan residents must apply for a refugee travel docu-ment. By most accounts, this tends to be an inefficient, laboriousprocess, plagued by systemic delay and bureaucratic corruption at somelevels. Ordinarily, refugee travel documents remain valid for one yearand are non-renewable. Foreign Minister Bastola explained that thegovernment issues refugee travel documents at its discretion, at timesrelying on the recommendation of UNHCR. But “[t]here is no policyabout issuing [refugee] travel documents. We do so on a case-by-casebasis.”151 To qualify for a travel document, Tibetans must present a valid

146 Tibet Justice Center interview with Julia Taft, former Assistant Secretary ofState for Population, Migration, and Refugees, and Special Coordinator for Tibet,in Washington, D.C. (April 17, 2001).147 Tibet Justice Center interview with Thinley Gyatso, Settlement Officer,Jawalakhel Settlement, in Kathmandu (June 7, 2001)148 Tibet Justice Center interviews, roundtable discussion with Tibetan communityand NGO representatives, in Pokhara (May 30, 2001).

149 Tibet Justice Center interview with Lanchup, Tibetan National Ex-PoliticalPrisoners Association, in Kathmandu (May 19, 2001).150 Tibet Justice Center interview with Lanchup, Choekyi Gyaltsen, and Tsering Losal,Tibetan National Ex-Political Prisoners Association, in Kathmandu (May 19, 2001).151 Tibet Justice Center interview with Chakra Prasad Bastola, Minister, Ministryof Foreign Affairs, in Kathmandu (May 25, 2001).

Recently, the government appears to have tightened its controlover Tibetans’ foreign travel. One Tibetan resident, who requestedanonymity, said that his application had been pending for severalmonths, and that it now appears difficult, if not impossible, forTibetans in Nepal to obtain a refugee travel document. BothTibetans and Nepalese officials expressed the belief that heightenedChinese pressure is partially to blame for this state of affairs.157

C. Travel to India

For many years, Nepal permitted Tibetan residents to travel to Indiawithout a refugee travel document. But a new law passed in October2000 now requires Tibetans to obtain documentation if they intend totravel to India by air.158 This imposes a substantial burden on Tibetansbecause of the bureaucratic hurdles they face in acquiring a travel doc-ument. Recently, for example, the Nepalese government agreed to issuespecial permits to Tibetans who wanted to attend a teaching of theDalai Lama in India in January 2002. Some Tibetans welcomed thisconcession, while others viewed it as a stopgap measure. One Tibetan,who requested anonymity, remarked: “We really need a more perma-nent solution. Acquiring a permit every time one needs to travel toIndia would impose so much hardship, including corruption.”

Because of the difficulties in acquiring a travel document, themajority of Tibetans travel to India overland. Tibetans said they faceharassment, extortion, and discrimination from Nepalese and Indianborder officials who often maintain, contrary to their governments’policies, that RCs do not permit passage between India and Nepal.159

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RC and pay a fee.152 UNHCR Protection Officer Weil added thatrefugees must provide a valid reason for traveling outside of the coun-try “such as a letter of invitation, medical [problems], family reunifica-tion, a conference, and sometimes—but not always—business affairs.”He added that “bureaucratic red tape” often makes international travelfor most legally resident Tibetans prohibitively difficult. 153

Several Tibetan interviewees confirmed these problems. “To geta [travel] permit,” said Dhondup Tsering, “we have to go to manyoffices. Local Nepalese people can get everything from the [central]district offices. For Tibetan people, we have to go through the set-tlement office, then the district office, then the Home Ministry, thenthe Foreign Ministry.”154 Based on the accounts of Tibetans who suc-cessfully acquired refugee travel documents, fees for their issuancegenerally run to around U.S. $100 to $150.155 Corruption amongsome civil service officials adds complexity and cost to the process.Karma Palden Tsering, a resident of Jawalakhel, recounted:

I went to Denmark for a human rights and democra-cy workshop, for one month. We had to bribe offi-cials to get our travel documents. First, we went to thecentral district office, then to the Home Ministry,then to the Foreign Ministry. I paid around 10,000Rs [approximately $130] to get my travel documents,and it took about one month to get them all.156

152 Tibet Justice Center interview with Umesh Prasad Mainali, Director-General,Department of Immigration, in Kathmandu (May 21, 2001).153 Tibet Justice Center interview with Roland-Francois Weil, Protection Officer,UNHCR, in Kathmandu (May 25, 2001).154 Tibet Justice Center interview with Dhondup Tsering, Tashi PalkhielSettlement, in Pokhara (May 30, 2001).155 Another source, who requested anonymity, confirmed these figures, noting thatfalse documents generally cost about 60,000 Rs, and as much as 100,000 to200,000 Rs, approximately $1,300 to $2,600, for a high-quality document. 156 Tibet Justice Center interview with Karma Palden Tsering, JawalakhelSettlement, in Kathmandu (June 7, 2001).

157 Tibet Justice Center interviews with Chakra Prasad Bastola, Minister, Ministryof Foreign Affairs, in Kathmandu (May 25, 2001); Samdup Lhatse, former repre-sentative, Tibetan Welfare Office, in Kathmandu (May 18, 2001).158 Tibet Justice Center interviews, roundtable discussion with Tibetan communityand NGO representatives, in Pokhara (May 30, 2001).159 Tibet Justice Center interviews with Kunga Gyatso, Paljorling Settlement, inPokhara (May 29, 2001); Karma Choezin, Tashi Palkhiel Settlement, in Pokhara(May 30, 2001).

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Representative Dupoizat said UNHCR has also urged the Nepalesegovernment to change the format of travel documents in order toreduce fraud.164

Making or purchasing false documents may be the only optionfor some Tibetans seeking to travel abroad. But in the long term, thispractice appears to threaten greater harm than good to the Tibetancommunity in Nepal. John Dyson, Political and Economic Officerat the U.S. Embassy in Kathmandu, explained that because consularofficers recognize the ability of some to obtain false documents inNepal, they tend to pay less attention to the validity of these docu-ments, thus weakening the cases of those seeking to travel on bonafide travel documents.165 In any event, with the exception of theUnited States, Canada, Switzerland, and a few others, most foreignembassies refuse altogether to accept such travel documents, granti-ng visas only upon presentation of a proper passport, thus makingtravel to most foreign countries by Tibetan residents in Nepalimpossible.

V. Property and Employment Rights

A. Property Ownership

Tibetan residents in Nepal have no right to own property. SecretaryShrestha of the Ministry of Law and Justice explained that “Tibetanscannot maintain property here because Nepal is a small country anda poor country,” and the government seeks to preserve Nepal’s scarceresources for Nepalese citizens.166 The curious exception to this blan-ket prohibition is that Tibetans may purchase and own motorbikes.

Karma Phuntsok, a resident of Paljorling, explained:

I face many problems when crossing the borderfrom Nepal to India. If I show my Nepali ID card,the police say that it is only for traveling insideNepal, and it is not valid to go to India. They say Iam a Tibetan refugee. They tell me I have to show apassport. Sometimes, I have to pay at every check-point along the border.160

Representatives of the Tibetan National Ex-Political PrisonersAssociation said that undocumented Tibetans generally pay as muchas 20,000 to 30,000 Rs ($260 to $390) in bribes to authorities at theborder.161

Frustrated by the cumbersome procedures for obtaining arefugee travel document, some Tibetans make or pay for false docu-ments.162 One Tibetan businessman emphasized, however, thatlower-level government officials have become somewhat less likelythan in the past to accept bribes for false papers. Mounting pressurefrom China has led the Ministry of Foreign Affairs to crack down onthis practice. Foreign Minister Bastola remarked that he would likethe Ministry to begin to produce refugee travel documents thatwould be more difficult to forge. But government regulationsrequire him to grant contracts to the lowest bidder, frustrating hisefforts to shift to more expensive fraud-proof documents.163

160 Tibet Justice Center interview with Karma Phuntsok, Paljorling Settlement, inPokhara (May 29, 2001).161 Tibet Justice Center interview with Lanchup, Choekyi Gyaltsen, and TseringLosal, Tibetan National Ex-Political Prisoners Association, in Kathmandu (May19, 2001).162 Tibet Justice Center interview with Umesh Prasad Mainali, Director-General,Department of Immigration, in Kathmandu (May 21, 2001).163 Tibet Justice Center interview with Chakra Prasad Bastola, Minister of ForeignAffairs, in Kathmandu (May 25, 2001). Minister Bastola said that he intended toseek a waiver of this rule next year in order to produce more secure travel documents.

164 Tibet Justice Center interview with Michel Dupoizat, Representative,UNHCR, in Kathmandu (May 25, 2001).165 Tibet Justice Center interview with John Dyson, Political and EconomicOfficer, U.S. Embassy, in Kathmandu (May 23, 2001).166 Tibet Justice Center interview with Udaya Nepali Shrestha, Secretary, Ministryof Law and Justice, in Kathmandu (May 22, 2001).

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prohibited by law from purchasing additional property, Tibetan res-idents cannot expand the settlements to meet the needs of a grow-ing population.

B. Employment Rights and Taxation

Settlement residents do not pay taxes to the Nepalese government.(Most, however, contribute two percent of their income to theTibetan government-in-exile as a voluntary tax.) By the same token,residents do not receive benefits or aid of any kind from the govern-ment. Former Tibetan Welfare Office Representative SamdupLhatse explained that the Tibetan government-in-exile providessome limited help to Tibetans in Nepal; for example, educationalscholarships for the young and financial support for the elderly.Several Tibetan NGOs also provide refugees with some assistance.

But they cannot own houses, automobiles, land, or other forms ofpersonal or real property. Tibetans who live outside of the settle-ments generally rent their homes from Nepalese citizens.167 With oneexception,168 today, as at the time of their founding, Tibetan settle-ment lands are owned by the Nepal Red Cross, which effectivelyholds them in trust for their residents.169

The dearth of adequate living space poses a serious problem forthe settlement residents. Most live in houses built or acquired in the1960s and 1970s. But today, the original residents must find spacein these same structures for their children and grandchildren.Increasingly, as many as nine or ten people live together in a two-room house. Pema Choedon, for example, a twenty-nine-year-oldresident of Tashi Palkhiel, lives with nine others, including her hus-band, children, and her husband’s parents and brothers.170 “Thebiggest problem facing the settlement now,” Jawalakhel SettlementOfficer Thinley Gyatso emphasized, “is the shortage of land. We arenot allowed to buy more land. The population is growing. Thereare many children. For example, we have four families in one smallbuilding.”171 Without ownership of the land or their homes, and

167 One couple, who lives near Tashi Palkhiel, pays 5,500 Rs (approximately $71)per month in rent, leaving only 300 Rs from their combined salaries to meet theirfood and other needs. Tibet Justice Center interview with Sherap Dolma, TashiPalkhiel Settlement, in Pokhara (May 30, 2001). 168 The Paljorling Settlement owns its own land because a Tibetan woman whoacquired Nepalese citizenship purchased it in 1968, though it is unclear to whomownership will pass when she passes away. Tibet Justice Center interview withNorbu Dorje, Settlement Officer, in Pokhara (May 29, 2001).169 Tibet Justice Center interview with T.R. Onta, Executive Director, Nepal RedCross, in Kathmandu (June 11, 2001).170 Tibet Justice Center interview with Pema Choedon, Tashi Palkhiel Settlement,in Pokhara (May 30, 2001).171 Tibet Justice Center interview with Thinley Gyatso, Settlement Officer,Jawalakhel Settlement, in Kathmandu (June 7, 2001). At Paljorling, Norbu Dorjeeexpressed similar concerns, noting that “there have been many children and notenough land to expand. We have too many people for the amount of space we have.We have two or three families in one room.” Tibet Justice Center interview withNorbu Dorje, Settlement Officer, Paljorling Settlement, in Pokhara (May 29, 2001).

As the Tibetan community in Nepal grows, settlement residents increasingly find

themselves crowded together in homes built years earlier, intended for one to four

residents but now often housing as many as twelve.Without the right to own or

purchase property, the Tibetan community cannot expand the settlements or con-

struct new housing to meet the needs of its growing population.

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and many such settlement factories have closed.177 Settlements con-tain scarce land suited for cultivation, and few jobs for Tibetans existoutside of the settlements.

Young adults living in the settlements expressed discouragementand frustration at their lack of employment opportunities. While allyoung people in Nepal face this situation to some extent, for Tibetans,it is aggravated by legal and social discrimination. Several intervieweesexpressed the hope that they might be able to have their own livingspace and begin new lives outside the settlements; few knew of anyfeasible means to realize their aspiration. Norbu Dorje remarked:

When parents have money, they try to send their chil-dren to college in India. When children return hereafter their studies, they face problems, because wedon’t have space or jobs to [offer] them in the Tibetansettlement here. Joblessness is a grave problem.178

Sangpo, Youth President at Jampaling, said that “the most urgentthing for the future is to help youngsters find jobs, get training.Otherwise, they go down much worse paths.”179 Some Tibetans seek toparticipate in Nepal’s trekking industry, but they frequently face insur-mountable obstacles because of rigid travel and employment restrictions.“At checkpoints,” one settlement resident explained, “the police ask foryour guide license, which is issued only to Nepalese, so I must say thatI am a friend of the tourists and that they are taking me with them.”180

Tsewang Mingde, a refugee at the Tashi Ling Settlement, described her

For example, Lodric, a Tibetan NGO active in the Paljorling andJampaling Settlements, grants monthly pensions of 2000 Rs(approximately U.S. $26) to elderly settlement residents; and theNorbulingka Social Welfare Organization at Jawalakhel providestraining programs for young Tibetans.172

Government officials and Tibetan residents confirmed thatTibetans can work in some jobs provided they possess an RC. Onlycitizens, however, can own and incorporate businesses.173 Tibetanbusinessmen and entrepreneurs therefore must either hire a Nepalesecitizen to serve as the nominal owner of his or her business or attemptto acquire citizenship, which generally means purchasing false paperson the black market. While some scapegoat Tibetans as “wealthy cap-italists” who occupy jobs that would otherwise be available to theNepalese people, the reverse is often true. A few Tibetans have beenfinancially successful, largely because of the once-flourishing Tibetancarpet industry. But most struggle to subsist. The majority of settle-ment residents interviewed by Tibet Justice Center support them-selves by selling souvenirs to tourists or operating small restaurants.174

Others work as teachers, nurses, or administrative assistants at the set-tlements.175 Still others work in the carpet factories, but most fre-quently as laborers and salespersons rather than business managers.176

The carpet industry has also been in decline since the early 1990s,

172 Tibet Justice Center interviews with Tashi Thundrup, Paljorling Settlement, inPokhara (May 29, 2001); Tashi Dawa, Paljorling Settlement, in Pokhara (May 29,2001); Chime Dhondren, Jawalakhel Settlement, in Kathmandu (June 7, 2001);Karma Palden Tsering, Jawalakhel Settlement, in Kathmandu (June 7, 2001).173 Tibet Justice Center interview with Samdup Lhatse, former representative,Tibetan Welfare Office, in Kathmandu (May 20, 2001).174 Shopkeepers said they generally can earn about 1,000 Rs (approximately $13)monthly selling souvenirs, with business varying by season.175 Interviewees said that teachers earn about 5,800 Rs monthly, and cashiers, sec-retaries, and other staff at the settlements earn about 4,000 Rs monthly.176 Salespersons earn about 2,500 Rs monthly, while a carpet designer may earn asmuch as 4,000 Rs monthly. Tibet Justice Center interviews with TsonduTharchin, Tashi Palkhiel Settlement, in Pokhara (May 30, 2001); Tsering Yanki,Jawalakhel Settlement, in Kathmandu (June 7, 2001).

177 Tibet Justice Center interviews with Thinley Gyatso, Settlement Officer,Jawalakhel Settlement, in Kathmandu (June 7, 2001); Norbu Dorje, SettlementOfficer, Paljorling Settlement, in Pokhara (May 29, 2001).178 Tibet Justice Center interview with Norbu Dorje, Settlement Officer, PaljorlingSettlement, in Pokhara (May 29, 2001).179 Tibet Justice Center interview with Sangpo, President, Youth Organization,Jampaling Settlement, in Pokhara (May 29, 2001).180 Tibet Justice Center interview with anonymous resident, Tashi Ling Settlement,in Pokhara (May 28, 2001).

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tolerate “anti-China” activities in Nepal. Home Secretary Regmiexplained that “Nepal will not serve as a base for anti-China activitiesagainst our neighbor….It is the established policy of the governmentnot to let any anti-Chinese activities [take place] on our soil. If thereare anti-China activities in Nepal, they [the Chinese authorities] willnot be pleased.”184 Foreign Minister Bastola emphasized the sameposition and remarked that “[i]f [the Tibetans] are refugees, we saythey should remain refugees, not political activists.”185

A. Pokhara

Tibetans living in the Pokhara settlements said March 10, 1999,marked the beginning of a period of heightened intolerance ofTibetan political and cultural activities. On March 10th, the anniver-sary of the 1959 Lhasa Uprising, Tibetans in the exile communitytypically organize peaceful marches and demonstrations. In Pokharain 1999, these events, organized largely by the Tibetan YouthCongress (TYC) and the Tibetan Women’s Association (TWA),erupted into violence after Nepalese police ordered Tibetan demon-strators to return to their settlements. Some refused, and the policeresponded with tear gas and by beating some demonstrators withsticks.186 Karma Choezin, then TWA President at Tashi Palkhiel,recalled: “On March 10th, I was beaten with a stick. They were beat-ing our backsides, and I put my hands behind to protect myself. Myright hand was broken. Now we are not free to do a peace march. The

mounting frustration as she watched her own children struggle to findemployment: “My daughter has a B.A. and wanted a governmentpost. But Tibetans can’t have government jobs. Now they say thathotel guides and trekking guides must be Nepali citizens, and it is hardto get citizenship.”181 Other private businesses from which Tibetans arenot barred by law nonetheless hesitate to hire qualified Tibetans whenNepalese young people also need jobs.182

VI.Freedom of Expression

Tibetans residing in Nepal today face heightened restrictions ontheir right (or ability) to hold certain cultural events and to stagepeaceful political demonstrations. As Nepal pursues closer ties withChina and pressure from Beijing intensifies, the Nepalese govern-ment’s toleration of perceived “anti-China” activities decreases.According to some reports, the Karmapa’s escape in January 2000exacerbated the situation for Tibetans. Representative Samdup Lhatsenoted that “both the Chinese government and Nepalese oppositionparties have been blaming the Nepalese government for the escapeof the Karmapa, and using this as an excuse to tighten security andcrack down on Tibetan social and political activities.”183 Moreover,the political instability in Nepal caused by the Maoist insurgencycontributes to a growing intolerance for any public display ofTibetan cultural or political activities. Because the line between cul-tural and political activities is often blurred, the Nepalese govern-ment at times perceives cultural and religious events to be politicalin nature.

Nepalese government officials made clear that they would not

181 Tibet Justice Center interview with Tsewang Mingde, Tashi Ling Settlement, inPokhara (May 28, 2001).182 Tibet Justice Center interviews, roundtable discussion with Tibetan communi-ty and NGO representatives, in Pokhara (May 30, 2001).183 Tibet Justice Center interview with Samdup Lhatse, former representative,Tibetan Welfare Office, in Kathmandu (May 20, 2001).

184 Tibet Justice Center interview with Shree Kant Regmi, Secretary, Ministry ofHome Affairs, in Kathmandu (May 23, 2001).185 Tibet Justice Center interview with Chakra Prasad Bastola, Minister, Ministryof Foreign Affairs, in Kathmandu (May 25, 2001).186 Tibet Justice Center interviews with Dekyi Wangmo, Tashi Palkhiel Settlement,in Pokhara (May 30, 2001); Tashi Thundrup, Paljorling Settlement, in Pokhara(May 29, 2001); Thubten Tsering, Paljorling Settlement, in Pokhara (May 29,2001); Shakya Honnkte Parkeangthuk, Tashi Palkhiel Settlement, in Pokhara(May 30, 2001); Karma Sampten, Paljorling Settlement, in Pokhara (May 29,2001); Pema Tenzin, Tashi Ling Settlement, in Pokhara (May 28, 2001); KeyloTsearpaytsang, Paljorling Settlement, in Pokhara (May 29, 2001).

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have taken place within the settlements, although a few Tibetans havequietly distributed leaflets to tourists. Tibetans also said they can nolonger display the Tibetan flag outside of the settlements. Some, how-ever, manage to remain politically involved in a low-profile manner.Dhondup Tsering, Pokhara Regional President of the NationalDemocratic Party of Tibet, said that while the newly formed politicalparty mainly staged events in India, “we have some activities in ourhome here, and the government does not disturb us when we are inthe settlement.”190 Pokhara Regional TYC President Thutop Yuthokand TWA President Pema Dolkar both said that because of height-ened restrictions on Tibetans’ political activity, their organizations hadbeen forced to shift their focus from political to social-welfare work.191

B. Kathmandu

In Kathmandu, too, the Nepalese government limits Tibetan cul-tural events. The Tibet Information Network (TIN), a London-based organization that provides independent monitoring of mattersconcerning Tibet, reported that on December 4, 2000:

Nepalese police baton-charged a crowd of thousandsof Tibetans, including monks, nuns and schoolchild-ren, in order to break up an event organized to com-memorate the 50th anniversary of the Dalai Lama’sleadership. Tibetans were allowed to hold a peacefulgathering to commemorate Human Rights Day andthe anniversary of the presentation of the NobelPeace Prize to the Dalai Lama on 10 December atthe Boudhanath Stupa in the city, but there was a

Nepali government will never allow it.”187

Paljorling Settlement Officer Norbu Dorje described how thisevent and its aftermath prompted a heightened crackdown on polit-ical and cultural expression among the Tibetans residing at thePokhara Settlements:

In 1999, we marched from one end of [the lake inPokhara] to the other. The march was stopped by thepolice. The police said: “We let you go this far, butwe have to obey the orders of our authorities, butalso China, because we’re small and poor.” Theyounger Tibetans didn’t listen. They had so muchlove for their country that they couldn’t controlthemselves. About 160 people were imprisoned for afew days. After this, officials came to the settlementsto warn us. The police asked the settlement officersto go to City Hall on March 12th, and [they] had toput it in writing that they would not participate inpolitical activities. Since then, the police have beenvery strict. When March 10th or other holidays near,the police come to the settlements to find out whatwe are planning. We celebrate days here in the camp,but we are not allowed to go out.188

The settlement officers in Pokhara thereafter reluctantly agreed toask the TYC, TWA, and other organizations to cease demonstratingoutside of the settlement boundaries.189

Since 1999, Tibetan political and cultural activities in Pokhara

187 Tibet Justice Center interview with Karma Choezin, Tashi Palkhiel TWAPresident, Tashi Palkhiel Settlement, in Pokhara (May 30, 2001).188 Tibet Justice Center interview with Norbu Dorje, Settlement Officer, PaljorlingSettlement, in Pokhara (May 29, 2001).189 Tibet Justice Center interview with Jigme Wandu, Settlement Officer, TashiPalkhiel Settlement, in Pokhara (May 30, 2001).

190 Tibet Justice Center interview with Dhondup Tsering, Pokhara RegionalPresident, National Democratic Party of Tibet, in Pokhara (May 30, 2001).191 Tibet Justice Center interviews with Thutop Yuthok, Pokhara RegionalPresident, TYC, in Pokhara (May 30, 2001); Pema Dolkar, Pokhara RegionalPresident, TWA, in Pokhara (May 30, 2001).

heavy police presence at the event, including someofficers in riot gear with batons.192

Interviews with TYC President Kelsang Phuntsok, TWAPresident Purbu Dolma, and residents of Jawalakhel confirmedreports of heightened restrictions on Tibetans’ freedom of assemblyand expression. Jawalakhel Settlement Officer Thinley Gyatso saidthat during the December 10, 2000 celebration, the Nepalese author-ities prohibited Tibetans from holding a ceremony at a public school:

There have been some changes from the [Nepalese]government. Sometimes, when we organized eventslike for the Dalai Lama’s birthday, we don’t get sanc-tion [a permit] from the [central] district office….[I]nDecember 2000, we were celebrating the fifty-yearsenthronement of the Dalai Lama. The event wasgoing to be at Namgyal Middle School, but they didnot allow us to do the ceremony. Authorities said [it]was a public space, and we could not have our cele-brations in public places.193

Tibetans’ March 10th celebrations at the Boudhanath Stupahave always been potentially volatile. In 2000, the celebrations ledto a violent exchange of bricks and stones after Nepalese authoritiesrefused to allow Tibetans to leave through the Boudha gate entrance.A small child was killed, dozens of people injured, and a young boyarrested for throwing stones. In 2001, TYC members, cooperatingwith the Tibetan Welfare Office, worked to prevent further con-frontations between Tibetans and the police.194 TYC members dis-

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couraged Tibetans from waving the Tibetan flag or engaging in othermore overt political activities. One Tibetan and one American hoist-ed the Tibetan flag, but the police did not respond with force, andthe celebrations proceeded without a major incident.195

In 2002, at least three Tibetan national flags were displayed dur-ing the March 10th commemoration in Boudha. While Nepalesepolice in riot gear remained present throughout the day, no majorconfrontations took place until after the public events concluded. Atthat time, a group of young Tibetans wearing “Free Tibet” banners ontheir foreheads and carrying Tibetan flags managed to evade theNepalese police at Boudha and travel to Thamel, where they demon-strated and shouted slogans. They then marched toward the ChineseEmbassy, but the Nepalese police apprehended them within a fewyards of the Embassy grounds. The youths reportedly sat immobile ina show of civil disobedience, and the police responded by beatingthem with batons and kicking them. Several of the demonstrators sus-tained bruises and other injuries. They were detained briefly butreleased shortly after the incident. The following day, the TibetanWelfare Office issued a public notice imploring Tibetans not to engagein such high-profile demonstrations on March 10th.196

C. Religious Freedom

Tibetans in Nepal generally enjoy freedom of religion. After Hinduism,Buddhism is the most widely practiced religion in Nepal, particularlyamong the Tibeto-Burmese ethnic groups that populate Nepal’s north-

192 TIN, News Update, Tibetans Sent Back Across the Border as Pressure Increases onNepal, Dec. 20, 2000.193 Tibet Justice Center interview with Thinley Gyatso, Settlement Officer,Jawalakhel Settlement, in Kathmandu (June 7, 2001).194 Tibet Justice Center interviews with Samdup Lhatse, former representative,

Tibetan Welfare Office, in Kathmandu (May 20, 2001); Kelsang Phuntsok, TYCPresident, in Kathmandu (May 24, 2001); see, e.g., Tibetans in Nepal MarkAnniversary of Failed Uprising, AGENCE FRANCE-PRESSE, Mar. 10, 2001.195 Tibet Justice Center interviews with John Dyson, Political and EconomicOfficer, U.S. Embassy, in Kathmandu (May 23, 2001); Kelsang Phuntsok, TYCPresident, in Kathmandu (May 24, 2001).196 Email from Dorjee Damdul, Researcher, Tibetan Centre for Human Rights andDemocracy (TCHRD), Kathmandu, to Robert D. Sloane, Tibet Justice Center,New York (Mar. 22, 2002) (on file with Tibet Justice Center).

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dance. But we were told by the Nepalese authorities that we could-n’t have it.” Mr. Phuntsok expressed cautious optimism, however,that in light of the peaceful March 10th celebration in 2001, thegovernment might agree to permit cultural shows again soon.201

D. Coordination Between the Nepalese Government and the Tibetan Welfare Office

The Nepalese government does not formally recognize the TibetanWelfare Office. But Home Secretary Regmi said that the “so-calledambassador of Tibet” acts as a useful intermediary between the Nepalesegovernment and the Tibetan community.202 Home UndersecretaryDhakal, by contrast, insisted that he had never heard of Samdup Lhatse,the Tibetan government’s representative at the time of Tibet JusticeCenter’s research.203 Representative Lhatse expressed frustration aboutthe constraints of working with a government that does not recognizethe Tibetan Welfare Office. He said he mainly communicates with thecentral district officer responsible for security in Kathmandu.204

Notwithstanding the government’s reluctance to recognize theTibetan government-in-exile formally, the Nepalese authorities oftenrequest the assistance of Tibetan government officials in preventingTibetans in Nepal from engaging in activities that China may perceiveto be political. These Tibetan officials therefore find themselves in theunenviable position of asking those they represent to accept limita-tions on their basic human right to freedom of expression. For exam-ple, in May 2001, immediately prior to the visit to Kathmandu of

ern Himalayan regions. Nepalese Hindus also consider the historicalBuddha to be an incarnation of the Hindu god Vishnu. Buddhism istherefore deeply ingrained in Nepalese society and culture, and for thisreason, generally respected. But at times, Nepalese officials perceiveTibetan religious activities as political and therefore prohibit them.“Sometimes, Tibetans want to celebrate the birthday of the DalaiLama,” Home Secretary Regmi said, “and if they want to observe thisin a public place, we fear they will celebrate not only the birth of theDalai Lama, but promote the independence of Tibet. In that case, wedecide to intervene.”197 Reports indicate that in February 2001, theauthorities attempted to stop Tibetans in Kathmandu from celebratingLosar, the Tibetan Buddhist new year, which Nepalese Buddhists aswell as Tibetans celebrate.198 The police eventually permitted Tibetansbriefly to display a photo of the Dalai Lama and to throw barley flourin the air. But Tibetans were prevented from setting up a traditionalshrine with the Dalai Lama’s picture and from assembling an audio systemfor projecting public prayers and speeches.199 The restrictions on Losar cel-ebrations during 2001 may have been a product of the recent visit of topChinese military officials to Nepal, and of the then-upcoming visit of for-mer Nepalese King Birenda to China.200

TYC President Kelsang Phuntsok said that since the end of theyear 2000, the Nepalese government has instituted a general prohi-bition against Tibetan religious and cultural programs, even thoseunrelated to the Dalai Lama and other perceived “political” issues.Purbu Dolma noted that in Fall 2000, the Nepalese authorities pre-vented TWA from holding a celebration of the birthday of a deity.“We were going to pray in the morning, and in the afternoon, we

197 Tibet Justice Center interview with Shree Kant Regmi, Secretary, Ministry ofHome Affairs, in Kathmandu (May 23, 2001).198 See World Tibet News, PM Nepalese Attempt to Stop Tibetan Festivities, Feb. 27,2001, at <http://www.tibet.ca. wtnarchive/2001/2/27. html>.199 See id.200 See Nepalese Officials Meet with Chinese Defense Minister, AGENCE FRANCE-PRESSE,Feb. 23 2001.

201 Tibet Justice Center interviews with Kelsang Phuntsok, TYC President, inKathmandu (May 24, 2001); Purbu Dolma, TWA President, in Kathmandu(June 2001).202 Tibet Justice Center interview with Shree Kant Regmi, Secretary, Ministry ofHome Affairs, in Kathmandu (May 23, 2001).203 Tibet Justice Center interview with Ganesh Dhakal, Undersecretary, Ministryof Home Affairs, in Kathmandu (May 23, 2001).204 Tibet Justice Center interview with Samdup Lhatse, former representative,Tibetan Welfare Office, in Kathmandu (May 20, 2001).

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VII.The Relationship Between the Tibetan and Nepalese Peoples

Notwithstanding the cultural and religious affinities betweenTibetans and some of the Tibeto-Burmese peoples of northern andwestern Nepal, Tibetans remain in many respects socially alienat-ed from Nepalese society. Most reside either in the refugee settle-ments or in the Boudha or Swayambunath regions borderingKathmandu. Intermarriage occurs infrequently, and Tibetan andNepalese children generally attend separate schools, at least untilthe secondary level. While most of these Tibetans have spent thebetter part of their lives in Nepal—and many second-generationTibetans know no other home—Tibetans in Nepal live largely as acommunity apart.

To most Nepalese, Tibetans remain foreigners. Local peoples inSolu Khumbu, such as the Sherpas, expressed their support for therefugees, and some provide assistance to new arrivals fleeing fromTibet. But while Nepalese Buddhists and Tibeto-Burmese peoplesfeel a kinship with Tibetans, these groups remain largely marginal-ized in Nepalese government and civil society.211 In Kathmandu andPokhara, popular sentiment tends to be more xenophobic. NepaleseNGOs, with the possible exception of HURON, do not assistTibetans or cooperate with Tibetan NGOs. Binod Bhattarai, corre-spondent for the Nepali Times, emphasized that some culturalstereotypes about Tibetans are deeply rooted and unlikely to changewithout increased communication and better education. He recalledhis own childhood fears of “the Tibetans”:

I grew up in a village, and Tibetans were seen as guyswith different clothes. If you cried too much, theywould come and take you. Those Tibetans come

Chinese Premier Zhu Rongji, Secretary Regmi summoned SamdupLhatse to his office and requested that the Tibetan community “stayaway from the streets” during the visit. 205 He asked RepresentativeLhatse to inform his constituents that demonstrators would be arrest-ed and deported to Tibet. Nepalese officials also visited Pokhara toinstruct the settlement officers to ensure that no one traveled toKathmandu during Zhu Rongji’s visit.206 Representative Lhatse com-municated the Home Secretary’s instructions to the Tibetan commu-nity, which reluctantly complied.207 Some Tibetans felt, however, thatRepresentative Lhatse had buckled too easily. This highlights a grow-ing division within the Tibetan community in Nepal—between thosewho believe that quiet diplomacy will ensure their survival in Nepaland those who favor a more assertive approach.208

During Zhu Rongji’s visit, Nepalese Prime Minister Girija PrasadKoirala reassured his Chinese counterpart that Nepal would not per-mit resident Tibetans to engage in “anti-Chinese” political activi-ties.209 To their credit—in what has been generally viewed as anunspoken exchange of concessions—Nepalese authorities did notinterfere with the Tibetan government-in-exile’s primary for the elec-tion of its first prime minister, which took place shortly thereafter.210

The elections, however, took place largely within the confines of thesettlements and not in any public forum.

205 Tibet Justice Center interview with Shree Kant Regmi, Secretary, Ministry ofHome Affairs, in Kathmandu (May 23, 2001).206 Tibet Justice Center interview with Tsondu Tharchin, Tashi PalkhielSettlement, in Pokhara (May 30, 2001).207 Tibet Justice Center interview with Samdup Lhatse, former representative,Tibetan Welfare Office, in Kathmandu (May 20, 2001). See Nepal Warns TibetansAgainst Anti-China Protests, AGENCE FRANCE-PRESSE, May 15, 2001; Nepal: Don’tRile Big Neighbor, N.Y. TIMES, May 16, 2001, at A8. 208 Tibet Justice Center interview with Samdup Lhatse, former representative,Tibetan Welfare Office, in Kathmandu (May 20, 2001).209 Nepal Reportedly Clamped Down After Karmapa Lama Fled, BBC NEWS, May15, 2001.210 Nearly every Tibetan resident in Nepal interviewed by Tibet Justice Centerreported voting in this election.

211 Tibet Justice Center interview with Kapil Shrestha, Secretary, Nepal HumanRights Commission, in Kathmandu (June 12, 2001).

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Nepalese government officials repeatedly emphasized that Nepalis a “small, poor, developing, and landlocked country,” and this per-ception influences political attitudes and policies toward Tibetans.According to the United Nations Development Program’s humandevelopment index, which measures a country’s status based on edu-cational attainment, life expectancy, and adjusted real income,Nepal ranks 144th out of 177 countries, just behind war-tornSudan.218 More than 40% of the population lives below the nation-al poverty line; 90% lack access to healthcare; and more than 20%cannot expect to live past their 40th birthday.219 While a relativelyhigh percentage of Nepalese citizens (approximately 60%) are liter-ate, limited economic opportunities and endemic political instabili-ty—brought into sharp relief by the massacre of Nepal’s royal fami-ly in June 2001 and the continuing Maoist insurgency—contributeto a deep sense of disaffection and unease among many Nepalese.

In this context, Tibetans, a few of whom have achieved eco-nomic success despite their disadvantaged status, sometimes becomescapegoats for the socioeconomic problems facing Nepal. ForeignMinister Bastola remarked that because of Nepal’s economic prob-lems, “many Nepalese have started reacting to the refugees. There area lot of problems, such as the oversupply of labor and prostitution.Also, there is a feeling that the refugees are taking away our jobs.”220

While Nepal’s economy depends on the Tibetan community for itscontribution to the carpet and tourism industries, this also generatesresentment. One Tibetan businessman noted that many Nepalesecitizens resent the fact that Tibetans occupy some of the top posi-tions in the carpet industry. Some also fear losing their nationalidentity as tourists increasingly visit Nepal to experience Tibetanreligion and culture. TYC President Kelsang Phuntsok blamed the

from other countries with different cultures very dif-ferent from us. They have always been perceived as“others,” even after so many years. 212

Relations between Nepalese citizens and Tibetan residents havebeen relatively peaceful for most of the past four decades. But Mr.Bhattarai added that the lack of interaction and understandingbetween their communities has led to heightened tension in recentyears. 213

Tibetans described few instances of direct harassment or discrim-ination, in part because most have minimal contact with theirNepalese neighbors. “If we behave nicely,” said Bhudharpo Yichungof Tashi Palkhiel, “they support us. So we are doing our best.”214

Tibetan students sometimes become friends with their Nepalese peersat school, some of whom occasionally pay visits to the settlements.215

Some interviewees, however, reported that local Nepalese use ethnicslurs against Tibetans and discriminate against them in the market-place. Sherap Dolma of Tashi Palkhiel said that “sometimes Nepalichildren come [to the settlement] in a group. They get into fightswith our children. They use bad words because we are refugees.”216

Kunga Gyatso added that some local Nepalese discriminate againstTibetans because they do not view them as fellow residents of Nepal:“Nepalese people say, ‘You are Tibetan. This is not your country.’”217

212 Tibet Justice Center interview with Binod Bhattarai, Correspondent, NepaliTimes, in Kathmandu (June 12, 2001).213 Tibet Justice Center interview with Binod Bhattarai, Correspondent, NepaliTimes, in Kathmandu (June 12, 2001).214 Tibet Justice Center interview with Budharpo Yichung, Tashi PalkhielSettlement, in Pokhara (May 30, 2001).215 Tibet Justice Center interview with Tashi Dawa, Paljorling Settlement, inPokhara (May 29, 2001).216 Tibet Justice Center interview with Sherap Dolma, Tashi Palkhiel Settlement,in Pokhara (May 29, 2001).217 Tibet Justice Center interview with Kunga Gyatso, Paljorling Settlement, inPokhara (May 29, 2001).

218 UNITED NATIONS DEVELOPMENT PROGRAM, 2000 HUMAN DEVELOPMENT

REPORT: HUMAN DEVELOPMENT AND HUMAN RIGHTS 1 (2000).219 Id. at 70.220 Tibet Justice Center interview with Chakra Prasad Bastola, Minister, Ministryof Foreign Affairs, in Kathmandu (May 25, 2001).

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not work, own property, or travel freely, and remain confined large-ly within the literal and figurative walls of the settlements. Theirright to engage freely in cultural and political activities is curtailed,and most have little contact with their Nepalese neighbors.Notwithstanding their long-term residence in Nepal, their legal sta-tus remains undefined and insecure. Unable to return to Tibet butalso unable to acquire Nepalese citizenship, Tibetan residents ofNepal remain stateless.

Maoists and other opposition parties for mobilizing popular resent-ment against Tibetans. He suggested, in fact, that the situation forTibetans in Nepal has some parallels to the situation facing Jews inGermany in the 1930s. Disaffected political groups scapegoatTibetans in much the same way as Hitler scapegoated the Jews,blaming them for Germany’s socioeconomic difficulties in the after-math of World War I.221

This resentment occasionally manifests itself in dangerous ways.Tibetans have sometimes found themselves at the center of the violenceand crime that plague Pokhara, Kathmandu, and other Nepalese cities.Some wealthier Tibetans have also become the targets of burglary. InFebruary 2001, the murder of a taxi driver outside of the PaljorlingSettlement sparked waves of violence against the Tibetan communityin Pokhara. Nepalese police arrested four boys from the settlement,along with a Tibetan youth visiting from Dharamsala. PaljorlingSettlement Officer Norbu Dorje and HURON Representative TamdinDorje explained that after the incident, local Nepalese gathered outsideof Paljorling, where they shouted, threw rocks, and accused the boys ofcommitting the murder.222 Tibetans remained inside the settlements fortwo weeks, fearing further violence. Representative Lhatse noted thatthe Tibetan government-in-exile suspects that the Maoists may havebeen involved in orchestrating the incident in order to incite violenceagainst the Tibetan community.223 At the time of Tibet JusticeCenter’s research, four Tibetan boys remained in prison. They hadnot been charged formally.

* * * *Tibetan residents in Nepal—those who arrived before 1989 andtheir children—thus live in an uneasy state of subsistence. They can-221 Tibet Justice Center interview with Kelsang Phuntsok, President, TYC, inKathmandu (May 24, 2001).222 Tibet Justice Center interviews with Norbu Dorje, Settlement Officer,Paljorling Settlement, in Pokhara (May 29, 2001); Tamdin Dorje, Representative,HURON, in Kathmandu (June 1, 2001).223 Tibet Justice Center interview with Samdup Lhatse, former representative,Tibetan Welfare Office, in Kathmandu (May 20, 2001).

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would be an intolerable“political” statement in theview of the Chinese govern-ment.226 For this reason,Tibetans entering Nepalwithout legal documentationafter 1989 are in theorydeemed illegal aliens subjectto detention and deportationunder section nine of theImmigration Act.227

I. Overview

Despite the formal state ofNepalese law, since about 1990the Nepalese government hasacceded to an informalarrangement or “gentleman’sagreement” with UNHCR—and, even more tacitly, withthe Tibetan government-in-exile’s office in Kathmandu.228 Thisagreement remains “in force” to date. In theory, it governs the proce-dures for the transit through Nepal of newly arriving Nepalese refugees;

The Gentleman’s Agreement: Transit ofTibetan Refugees Through Nepal

According to different estimates, between 2500 and more than 3000Tibetans cross the border into Nepal each year, typically in transit toTibetan exile communities in India.224 Because of pressure fromChina, Nepal no longer recognizes newly arriving Tibetans as refugeesor permits them to remain in Nepal. Shree Kant Regmi, Secretary ofthe Ministry of Home Affairs, emphasized that to “recognize” Tibetanrefugees or extend them political asylum would implicitly validate theclaim that China commits human rights violations in Tibet:

It is the established policy of the [Nepalese] govern-ment that Tibet is the integral part of China, and[China] is our good neighbor. We have very goodneighboring relations with China. We don’t thinkthere are human rights violations [in Tibet]….If weallow asylum to Tibetan refugees, that is anotherway to say that [the Chinese government] is violat-ing human rights in Tibet; and I say that there [are]no human rights violations in Tibet.225

Michel Dupoizat, UNHCR Representative in Kathmandu, sim-ilarly remarked that for Nepal to acknowledge Tibetans as “refugees”

224 See, e.g., U.S. Committee for Refugees, Country Report: Nepal, at<http://www.refugees.org/world/countryrpt/ scasia/nepal.html> (visited Sept. 19,2001) (reporting the transit of 2,637 Tibetans through Nepal in the year 2000).In recent years, as many as one-third of these refugees have been children betweenthe ages of six and thirteen traveling to schools operated by the Tibetan govern-ment-in-exile in India. Tibet Justice Center interview with Samdup Lhatse, for-mer representative, Tibetan Welfare Office, in Kathmandu (May 20, 2001).225 Tibet Justice Center interview with Shree Kant Regmi, Secretary, Ministry ofHome Affairs, in Kathmandu (May 23, 2001).

Children as young as six years old are fre-

quently sent by parents on the long journey

into exile to attend schools run by the

Tibetan Government-in-exile in India, often

only accompanied by a friend, relative or

traveling companion.

226 Tibet Justice Center interview with Michel Dupoizat, Representative,UNHCR, in Kathmandu (May 25, 2001).227 Nepal Immigration Act 2049, § 9(1) (empowering the Director-General ofImmigration to deport illegal foreign nationals).228 Home Secretary Regmi remarked: “Formally, we do not allow it [the TibetanWelfare Office]. If we allow a Tibetan Welfare Office, that means we recognizeTibet as a free country.” Tibet Justice Center interview with Shree Kant Regmi,Secretary, Ministry of Home Affairs, in Kathmandu (May 23, 2001). Accordingto UNHCR, the gentleman’s agreement “took effect” after December 31, 1989.See TIN, News Update, New Increase in Deportations of Tibetans from Nepal, Dec.24, 2001 (quoting Roland-Francois Weil, Protection Officer, UNHCR,Kathmandu).

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229 See BOSE, supra note 23, at 38 (“The Nepal government does not recognise thenew arrivals from Tibet as refugees and does not allow them to remain inNepal….[But] [a]pparently there is an unofficial arrangement between theNepalese government and the office of the Dalai Lama in India that they will takethe new arrivals away from Nepal.”).230 Tibet Justice Center interview with Umesh Prasad Mainali, Director-General,Department of Immigration, in Kathmandu (May 21, 2001).231 Tibet Justice Center interviews with Umesh Prasad Mainali, Director-General,Department of Immigration, in Kathmandu (May 21, 2001); Shree Kant Regmi,Secretary, Ministry of Home Affairs, in Kathmandu (May 23, 2001); GaneshDhakal, Undersecretary, Ministry of Home Affairs, in Kathmandu (May 23,2001); Michel Dupoizat, Representative, UNHCR, in Kathmandu (May 25,2001); John Dyson, Political and Economic Officer, U.S. Embassy, inKathmandu (May 23, 2001); and Samdup Lhatse, former representative, TibetanWelfare Office, in Kathmandu (May 20, 2001).232 Tibet Justice Center interview with Shree Kant Regmi, Secretary, Ministry ofHome Affairs, in Kathmandu (May 23, 2001).

it does not contemplate or permit the resettlement of Tibetan refugeesin Nepal.229 “There is no formal arrangement,” said Director-Generalof Immigration Mainali, “but only an explicit policy with an under-standing with the [Nepalese] government and UNHCR.”230

A. The “Terms” of the Gentleman’s Agreement

Based on interviews with UNHCR staff, officials at the Ministry ofHome Affairs, the Director-General of Immigration, officials of theTibetan government-in-exile, and officials at the U.S. Embassy inKathmandu,231 Tibet Justice Center formed the following general pic-ture of the manner in which the gentleman’s agreement should operate:

Newly arriving Tibetans apprehended by the Nepalese authoritiesat the border will be denied entry and turned over to the Chineseauthorities. Home Secretary Regmi emphasized that the Nepalese bor-der with Tibet (China) is impermeable. The “Tibetan people,” he said,“need to have legal travel documents to enter, and they want to crossillegally. When you travel from Canada to the United States and haveno document, you’re also arrested.”232 Nepal’s practices in this regard,he therefore suggested, conform to those of most every nation. (This is

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not altogether true because many nations, particularly those that haveratified the Refugee Conventions, generally abide by the bedrock prin-ciple of non-refoulement, and China’s persecution of Tibetans, includ-ing those who seek to flee, has been widely documented.)

Tibetans apprehended by the police within Nepal’s borders, how-ever, will be detained and then turned over to the Department ofImmigration. In theory, Nepalese police will accompany them to theDepartment, which pays the police a stipend that, according to dif-ferent accounts, compensates them for their expenses only, providesthem with a per diem for their services, or both.233 At this stage, theDepartment of Immigration contacts UNHCR, which will conducta brief interview with the refugees to determine whether they are “ofconcern to the High Commissioner.” According to UNHCR, thisinterview is emphatically not a refugee status determination.234

“Of concern” is a broad designation used worldwide by UNHCRto refer to asylum seekers, refugees, internally displaced persons, andothers. For Tibetans present illegally in Nepal, “of concern” generallymeans “in transit to India.” Country Representative Dupoizatremarked that UNHCR “first meet[s] [the refugees] and make[s] surethey are going to India. We are not going to help people going toDharamsala if that is not their intent. If that is their intent, we con-sider them ‘of concern.’”235 In fact, there appear to be only two situa-tions in which UNHCR ordinarily will not find Tibetans illegallypresent in Nepal to be “of concern”: (1) where the individual is deter-mined to be a businessman or a legal visitor to Nepal with a validChinese passport and Nepalese visa; and (2) where UNHCR’s inter-view raises concerns that the individual may not be a Tibetan. The

233 According to UNHCR, while the police receive this stipend from theDepartment of Immigration, UNHCR supplies the necessary funds throughgrants to the Ministry of Home Affairs. Interview with Michel Dupoizat,Representative, UNHCR, in Kathmandu (May 25, 2001).234 Representative Dupoizat stated plainly: “We are not doing status determina-tions for Tibetans.” Tibet Justice Center interview with Michel Dupoizat,Representative, UNHCR, in Kathmandu (May 25, 2001).235 Id.

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refugee protection of any kind. UNHCR gives Tibetans whom itdeems to be “of concern” a small stipend upon their departure. Intheory, this money is intended to support them until their arrival inIndia. In fact, these stipends typically are aggregated and given to thebus driver. Part of the money pays the driver. The remainder typi-cally goes to authorities at the Indian border.237 Kelsang Chime,Director of the Reception Centre, estimated that the driver receivesapproximately 1700 Nepalese rupees (Rs) for each Tibetan.238

From Sonauli, the buses proceed to New Delhi, India, fromwhere Tibetans typically travel to one of the Tibetan exile communi-ties, schools or monasteries in India. Initially, most visit Dharamsala,the seat of the Tibetan government-in-exile, to meet the Dalai Lama.

B. Operation of the Gentleman’s Agreement in Practice

The gentleman’s agreement appears to operate as described above inrare cases.239 But this pattern seems to represent the exception ratherthan the rule. Many aspects of the gentleman’s agreement appear tohave broken down in practice. Most of the Tibetans interviewed byTibet Justice Center arrived at the Reception Centre independently,i.e., without assistance from Nepalese authorities. Often, they reached

“of concern” determinations consist of a brief interview intended toascertain the reasons for each Tibetan interviewee’s decision to cometo Nepal. The overwhelming majority of Tibetans are found to be “ofconcern”; in only a handful of cases annually does UNHCR deter-mine otherwise, generally for one of the two reasons stated above.

At this stage, though nominally in UNHCR’s custody, Tibetansstay at the Tibetan Refugee Reception Centre located nearSwayambunath on the outskirts of Kathmandu. The Tibetan WelfareOffice administers and supervises the Reception Centre with fundsreceived from UNHCR and foreign donors. The Reception Centreprovides shelter, food, and medical care to Tibetans while they remainin Nepal awaiting authorization to proceed to India. By tacit agree-ment, Tibetans must depart Nepal within two weeks of their arrivalat the Reception Centre. In practice, however, the Nepalese authori-ties generally do not enforce this time limitation strictly.236 Instead, abus leaves the Kathmandu Reception Centre for India wheneverenough Tibetans, following processing, are present at the Centre tofill one to or near capacity.

To proceed to India, Tibetans must be (1) registered by theReception Centre and interviewed by officials of the Tibetan gov-ernment-in-exile, which (2) categorizes them in terms of their age,reason for leaving Tibet (most frequently, to seek religious freedom,to escape political oppression, or, for children and young adults, toget an education) and intent (e.g., to join a monastery or school,visit relatives, etc.); (3) interviewed by UNHCR officials to ensurethat they are “of concern to the High Commissioner,” in which caseUNHCR will (4) issue them a “recommendation letter” directed tothe Department of Immigration, which ordinarily will then (5) issuethem an “exit permit.”

The “exit permit” allows Tibetans solely to travel from theReception Centre in Kathmandu to the Nepalese border with Indiaat the town of Sonauli. It provides no right of reentry, legal status or236 Tibet Justice Center interview with Samdup Lhatse, former representative,Tibetan Welfare Office, in Kathmandu (May 20, 2001).

237 Tibet Justice Center did not investigate the legal status or rights of Tibetanrefugees in India. Evidence suggests, however, that despite the tacit arrangementat the border, Tibetans remain in India only as illegal aliens. 238 Tibet Justice Center interview with Kelsang Chime, Director, Tibetan RefugeeReception Centre, in Kathmandu (May 24, 2001). Dorjee Damdul, a researcherfor the Kathmandu branch of TCHRD, estimated that the Indian border policetypically demand about 200 Rs for each Tibetan and, in some cases, also a “tariff”on any goods they carry with them. Tibet Justice Center interview with DorjeeDamdul, Researcher, TCHRD, in Kathmandu (May 20, 2001).239 For instance, Dekyi Choezem, a Tibetan woman from Lhasa, related that shetraveled to Nepal with a group of about twenty others. After two days of walkingin the Solu Khumbu region, her group encountered the Nepalese police. The offi-cers transported them by truck to the Department of Immigration. During thejourney, the police provided them with food and water purchased, when necessaryfrom local Nepalese citizens. Tibet Justice Center interview with Dekyi Choezem,Tibetan Refugee Reception Centre, in Kathmandu (May 26, 2001).

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to travel legally fromLhasa to Dram atthe Chinese side ofthe Tibeto-Nepaleseborder. It is difficult,however, to obtain apermit and oftenrequires either con-nections, bribery orboth. But for thoseTibetans with ade-quate resources, abusiness permit gen-

erally allows travel to the border without incident by bus, truck orprivate car. Without such a permit, by contrast, it appears to be verydifficult to traverse this route because of its many police check-points—although a few Tibetans interviewed by Tibet Justice Centermanaged to reach Dram safely without a permit.

In Dram, most then enlisted the aid of a hired guide—sometimesNepalese, other times Tibetan—and with this help circumvented themain Sino-Nepalese checkpoint at Kodari Bridge by walking or crawl-ing through the surrounding forest and hills at night. After reachingthe Nepalese side of the border, theyusually walked or hitched a ride to thenearest town with public bus service to

Kathmandu with the aid of a hired guide to whom they paid a largefee. At times, the Nepalese authorities facilitated their travel by direct-ing them to buses and, in a few cases, by paying their fares. But gen-erally, the journey from the Nepalese border to the Reception Centreappears to be perilous, not only because of natural risks, but alsobecause of the risk of abuses by, among others, the Nepalese police.

Tibetans most frequently travel to the Reception Centre by one oftwo routes: the Friendship Highway, which extends from Lhasa toKathmandu, or Nangpa-la pass in the Solu Khumbu region of theHimalayas, northeast of Kathmandu. In general, Tibetans who travelby the former route face greater risks of apprehension because theymust cross the border at or near the Kodari Bridge, a formal entrypoint, evading both the Chinese police at the Tibetan border town ofDram (Chinese: Zhangmu; Nepalese: Khasa) and the Nepalese immi-gration authorities on the opposite side of the border. Because it is a for-mal entry point, border management at the Kodari Bridge appears tobe consistent year round. By contrast, the Solu Khumbu route posesfewer risks of apprehension. The climate and road conditions deterboth Chinese and Nepalese authorities from patrolling this region asvigilantly, especially during the fall and winter months. For the samereason, however, the Solu Khumbu route tends to pose greater risks toTibetans from natural perils such as inadequate shelter and food.

Tibet Justice Center interviewed several Tibetans who escapedthrough less well-known routes, but did not gather information suf-ficient to understand their comparative viability as escape routes.Based on the interviews conducted, Tibet Justice Center formed thefollowing picture of the general patterns of escape along theFriendship Highway and Solu Khumbu routes:

1. Friendship Highway. Tibetans who traveled by the FriendshipHighway typically traveled to Lhasa first.240 There, most acquired aChinese “business travel permit.” This document permits the bearer240 Those who did not often resided in towns, such as Tingri, located near theTibeto-Nepalese border.

Despite the harsh terrain in the Himalayan

regions, many Tibetans fleeing persecution avoid

the main trails used by Nepalese and Chinese

traders to avoid apprehension by the police.

Reports indicate that some Nepalese police

have been forcing Tibetans apprehended within

a few days walking distance of the border to

return to Tibet in violation of the fundamental

principle of non-refoulement.

The Chinese border post at the "Friendship Bridge"

which links Nepal and Tibet.

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eral months—or forciblyreturned to Lhasa.242

Many interviewees there-fore made several attemptsbefore managing to reachthe border successfully.Once in Nepalese territo-ry, the groups walked formany days to reach thenearest village with trans-portation to Kathmandu,typically Jiri.

Virtually all of the Tibetans interviewed by Tibet Justice Centerwho escaped to Nepal by Nangpa-la pass encountered the Nepalesepolice at some point. Nepalese police abuses appear to be more com-mon in the Solu Khumbu region than along the FriendshipHighway route.243 The police sometimes stole Tibetans’ money orbelongings and, in some cases, detained or physically mistreatedthem. Many Tibetans apprehended near—within one or two dayswalking distance on the Nepalese side of—the border said that thepolice also ordered them to return to Tibet. Interviewees related thatthe police forced them, sometimes at gunpoint, to walk back towardthe Sino-Nepalese border for from several hours to as long as oneday; however, the police rarely followed them the entire way (and,at times, not at all). Instead, the police typically ceased to follow the

Kathmandu (almost invariably, the village of Barabise). A few alsotraveled to Kathmandu by private vehicle, truck or motorcycle.

About twenty Tibetans interviewed by Tibet Justice Centertraveled by the Friendship Highway. Many encountered theNepalese police en route, and police conduct, according to theiraccounts, rarely conformed to the terms of the gentleman’s agree-ment. In general, the police permitted them to continue on toKathmandu, but in one case, they arrested a Tibetan at Barabiseand turned him over to the border authorities; and in several othercases, Tibetans suffered brief detentions or threats of deportationas a means of extortion.

2. Nangpa-la. Those Tibetans who crossed the Tibeto-Nepalese borderat Nangpa-la pass in Solu Khumbu also typically traveled to Lhasa first.In general, this group tended to be poorer and less well-connected thanthose who came to Nepal by way of the Friendship Highway. Manytherefore spent substantial time in Lhasa—ranging from a few weeks tomore than one year—working to save money to pay for a guide, food,bus fares, and other necessities to sustain them during the perilous jour-ney to and through the Himalayas. Often, they joined groups of rough-ly twenty other fellow travelers accompanied by a guide.241

Journeys to Nangpa-la typically, though not always, took thegroups from Lhasa to Shigatse by truck or bus; from Shigatse toLhatse by bus or foot; and from Lhatse to the Sino-Nepalese borderby foot. The groups usually walked only at night to minimize therisk of apprehension by Chinese authorities. The walk from Lhatseto the border takes approximately ten days.

Tibetans who escaped by this route frequently encountered theChinese police. If captured, they were detained—sometimes for sev-

241 The reliability and precise services offered by guides varied considerably. Someaccompanied their groups only as far as the Sino-Nepalese border; othersremained with their groups until they had made their way well into Nepalese ter-ritory; and still others accompanied their groups the entire way to the KathmanduReception Centre. Tibet Justice Center interviewed several Tibetans who relatedincidents of unreliability, drinking, theft, and even treachery by guides.

Namche Bazaar, two to three days walking distance

from the Nangpa-la pass, is the first major town

refugees may reach after traversing the Himalayas.

242 Border control on the Chinese side of the Sino-Nepalese border has increasedin recent years. See, e.g., TIN, News Update, Tighter Regulations, More Detentionson Tibet Nepal Border, June 3, 200.243 The reason for this may be that about one month before Tibet Justice Center’sresearch, a delegation from the U.S. State Department visited Nepal to monitorcompliance with the gentleman’s agreement along the route from Kathmandu toDram. According to the State Department, the police’s knowledge of the gentle-man’s agreement’s tacit procedures is uneven. Despite assurances to the govern-ment delegation, some police did not appear to be aware of their duties and oth-ers, delegates suspected, knowingly violated them. Tibet Justice Center telephoneinterview with Susan O’Sullivan, U.S. Department of State (March 2001).

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escape during the fall and winter months, however, often suffer fromfrostbite and other ailments caused by the cold. Mingma TempaSherpa, a healthcare worker at Khunde Hospital located north ofNamche Bazaar in Solu Khumbu, remarked: “Every year we haveseen a lot of Tibetans, those who come in bad weather and havefrostbite and pneumonia, those who do not eat or drink very well onthe journey….[T]hose who get in trouble usually come through inthe winter when it snows.”246

II.The “Parties” to the Gentleman’s Agreement

To function smoothly, the informal arrangement established by thegentleman’s agreement requires the participation of UNHCR, theNepalese government, the Tibetan government-in-exile, and to acertain extent, the U.S. government, acting primarily through itsEmbassy in Kathmandu.

A. The U.N. High Commissioner for Refugees

Under the “terms” of the gentleman’s agreement, the Nepalese policeshould inform the Department of Immigration each time they appre-hend new arrivals. The Department, in turn, should inform UNHCRof the existence of the refugees and then transfer them to its custody.In fact, most Tibetans arrive at the Reception Centre in Kathmanduindependently by one of the two routes described above. ReceptionCentre staff, officials of the Tibetan government-in-exile, employees,and volunteers then inform UNHCR of their arrival. UNHCR regu-larly sends its own staff to the Centre to conduct summary interviews.Provided UNHCR determines the refugees to be “of concern,” it willthen ask the Department of Immigration to issue them an exit permit.

The Nepalese government formally acknowledges UNHCR’sassistance only with respect to ethnic Nepalese refugees from

group at some point and simply ordered them to continue. Tibetanswould usually wait several hours in hiding and then turn back andtravel toward Kathmandu by a less visible route.

Wangdu, for example, said that he traveled with a group ofabout twenty others from the Sino-Nepalese border. They arrived ata restaurant at midnight and waited there until the morning. Theythen attempted to sneak past a Nepalese police checkpoint. But they“took the wrong route” and encountered five uniformed police car-rying guns. The police brought them to the station, took their knivesand other weapons, and searched them for money. After about a halfhour of detention, the police released the Tibetans and said, “Goback to Tibet.” According to Wangdu, the officers followed thegroup for several hours and then threatened: “Go back. And if youcome back, we’ll shoot you.”244

Tibet Justice Center’s interview with the police in Thame, thesite of the final Nepalese police post on the main trail to Nangpa-la,confirmed that this pattern of events may reflect an explicit policy.The Department of Immigration, according to the Thame police,dictated a policy to send Tibetans back to the border by radioannouncement about one year earlier. The police insisted that theywill not forcibly repatriate Tibetans who refuse to return to Tibet,but said they will encourage the groups to return and explain that itwould be in their best interest.245

After reaching Jiri or another village with road access toKathmandu, Tibetans typically took a bus to the capital. By speak-ing to Tibetan residents there, most then learned how to get to theReception Centre. Once they arrive at the Centre, Tibetans receivefood, shelter, and medical attention if necessary. Most intervieweesreported good health, and with few exceptions they suffered onlyminor injuries from the journey (scratches, bruises, etc.). Those who

244 Tibet Justice Center interview with Wangdu, Tibetan Refugee ReceptionCentre, in Kathmandu (May 23, 2001).245 Tibet Justice Center interview with Nepalese police officers, in Thame (June 5,2001).

246 Tibet Justice Center interview with Mingma Tempa Sherpa, Staff Physician,Khunde Hospital, in Khunde (June 4, 2001).

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UNHCR staff, provides most of the practical assistance to newarrivals. But the funds originate with UNHCR, which in turn receivessupport from sympathetic foreign governments, most prominently,the United States. The annual U.S. Foreign Appropriations Act ear-marks funds specifically for assistance to Tibet. According to theSpecial Coordinator for Tibet during the Clinton Administration,approximately $100,000 of the $2 million annual grant for Tibetserves to support UNHCR’s critical assistance to new arrivals.250 Otherforeign governments, principally European, give to UNHCR withoutspecification. According to Representative Dupoizat, the UNHCROffice in Kathmandu must convince Geneva of the need to allocatefunds from its general budget to support the low-profile assistance toTibetans in Nepal. Dupoizat remarked that, at present, adequatefunds exist to sustain the process because of the sympathy of foreigndonors, particularly the United States, which overtly supports the con-tinuing operation of the gentleman’s agreement.251

Border Missions: Monitoring Compliance and Ensuring Non-Refoulement.Until recently, a crucial exception to this behind-the-scenes approachwas UNHCR’s policy of carrying out missions to instruct the Nepaleseborder police in the operation of the gentleman’s agreement and tomonitor compliance. Until about 1999, UNHCR staff periodically vis-ited the remote regions of Nepal where Tibetans frequently cross theborder. These include Solu Khumbu, Humla, Mustang, and othernorthern Himalayan regions. There, staff spoke with local Nepalesepolice about the gentleman’s agreement and informed them of binding

Bhutan. The gentleman’s agreement remains uncodified. But sinceNepal tightened its border control with China in the late 1980s andthen ceased to permit Tibetans to enter its territory altogether in1989, UNHCR has worked to facilitate the operation of the gentle-man’s agreement. UNHCR Country Representative Dupoizat andTibetan Welfare Office Representative Samdup Lhatse both empha-sized that this low-profile assistance is a far more effective means tohelp newly arriving Tibetans than formal involvement and refugeestatus determinations.247

Nepal remains under acute pressure from China—diplomatical-ly, economically, and geopolitically—and it therefore cannot affordto be perceived to recognize the existence of Tibetan “refugees” asdefined by the Refugee Conventions.248 But UNHCR’s participationin effect provides a “stamp of legitimacy” to the informal processthat renders it more tolerable to the Nepalese government. It mayalso provide Nepal with a means to deflect the suggestion that itactively aids Tibetans. The government can instead claim that itcooperates with UNHCR, an internationally recognized body, tocomply with its obligations as a member of the United Nations. Thiswould be consistent with Foreign Minister Bastola’s remark:“Although we’re not party to the [Refugee] Conventions, we try tocomply with UNHCR’s norms.”249

By informal arrangement, UNHCR provides funds indirectly tofinance the gentleman’s agreement. It allocates these funds to ensurethe continuing compliance of the Nepalese Department ofImmigration, Ministry of Home Affairs, and police; and to enablethe Tibetan government-in-exile’s refugee-assistance programs for newarrivals. The Tibetan Welfare Office in Kathmandu, working with

247 Tibet Justice Center interviews with Michel Dupoizat, RepresentativeUNHCR, in Kathmandu (May 25, 2001); Samdup Lhatse, former representative,Tibetan Welfare Office, in Kathmandu (May 20, 2001).248 See 1951 Convention, supra note 70, art. 1; 1967 Protocol, supra note 70, art. 1(2).249 Tibet Justice Center interview with Chakra Prasad Bastola, Minister, Ministryof Foreign Affairs, in Kathmandu (May 25, 2001).

250 Tibet Justice Center interview with Julia Taft, former U.S. Assistant Secretaryfor Population, Migration, and Refugees, and Special Coordinator for Tibet, inWashington, D.C. (April 17, 2001). The remainder of these funds generally sup-port economic, cultural, and humanitarian aid programs within Tibet, largely bymeans of the Bridge Fund. Id.251 Tibet Justice Center interviews with Michel Dupoizat, Representative,UNHCR, in Kathmandu (May 25, 2001); John Dyson, Political and EconomicOfficers, U.S. Embassy, in Kathmandu (May 23, 2001). See, e.g., U.S. BacksNepal to Resolve Refugee Issue, U.P.I., Dec. 2, 2000.

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siderable embarrassment. On December 20, 2000, TIN issued anews update explaining:

The UNHCR has until recently sought to ensurethat local officials in border areas are aware of [thegentleman’s agreement] by making official visits topolice posts and local offices in border areas ofNepal where Tibetan refugees arrive from Tibet.Since the escape of the Karmapa, however, these vis-its have been suspended by the Nepalese govern-ment….[A] Nepalese Home Ministry official toldTIN that there are no plans at present to allowUNHCR to resume these visits.257

UNHCR Country Representative Dupoizat and ProtectionOfficer Weil confirmed this report. Despite repeated requests, theysaid, the Nepalese government now rejects or ignores their proposalsto send staff to the border regions.258 Secretary Regmi suggested thatsome Nepalese citizens suspect UNHCR of complicity in the dra-matic escape from Tibet of the 17th Karmapa Lama in January 2000.

Other sources, however, who requested anonymity, suggested thatthe Karmapa’s escape alone does not account for the suspension of theborder missions. The Nepalese government halted these missions asearly as 1998, while the Karmapa did not escape until January 2000.The Nepalese authorities rather suspended the missions in large partbecause of deteriorating relations between the Ministry of HomeAffairs and UNHCR. According to these accounts, this friction resultsfrom a change in the manner in which UNHCR broaches the issueswith the Nepalese government. While former UNHCR administra-

international human rights norms, including non-refoulement.Sometime in 1998, however, the Nepalese authorities suspend-

ed these missions indefinitely. Ganesh Dhakal, Undersecretary of theMinistry of Home Affairs, said he did not know the reason for thisapparent policy shift.252 His immediate superior, Home SecretaryRegmi, insisted that UNHCR does continue to carry out missions tothe border.253 But Tibet Justice Center’s interviews with UNHCR,among others, confirmed that the missions have been disallowed.254

Foreign Minister Bastola acknowledged candidly that the govern-ment ceased to permit the UNHCR border missions because theyhad “other implications vis-à-vis the Chinese authorities.”255 WhenJulia Taft, former U.S. Assistant Secretary of State for Population,Migration, and Refugees, and Special Coordinator for Tibet, urgedMinister Bastola to reauthorize the missions, he refused remarkingthat it “is not our policy to facilitate or encourage the escape orsmuggling of people across the border. Once they are here, they arefacilitated. But if we facilitate them at the border, that would befacilitating their escape….[This is] a very sensitive issue for theChinese authorities.”256 But “at the border,” according to TibetJustice Center’s research, may include regions inside of Nepal as faras one or two days walking distance from the border.

According to most reports, the event that led the Nepalese gov-ernment to disallow further border missions was the dramatic escapeof the 17th Karmapa Lama from Tibet to India, via Nepal, inJanuary 2000. This incident caused the Chinese government con-

252 Tibet Justice Center interview with Ganesh Dhakal, Undersecretary, Ministryof Home Affairs, in Kathmandu (May 23, 2001).253 Tibet Justice Center interview with Shree Kant Regmi, Secretary, Ministry ofHome Affairs, in Kathmandu (May 23, 2001).254 Tibet Justice Center interviews with Michel Dupoizat, Representative, andRoland-Francois Weil, Protection Officer, UNHCR, in Kathmandu (May 25,2001).255 Tibet Justice Center interview with Chakra Prasad Bastola, Minister, Ministryof Foreign Affairs, in Kathmandu (May 25, 2001).256 Id.

257 TIN, News Update, Tibetans Sent Back Across the Border as Pressure Increases onNepal, Dec. 20, 2000.258 Tibet Justice Center interviews with Michel Dupoizat, Representative, andRoland-Francois Weil, Protection Officer, UNHCR, in Kathmandu (May 25,2001).

tions in Kathmandu sought to maintain a low profile, the present onereportedly takes a more forceful approach. This manner of interactionoffends the government’s sense of sovereign integrity. It also makessome officials in the Ministry of Home Affairs nervous that UNHCRwill raise the “Tibet issue” in a way that may threaten to disrupt theNepalese government’s generally positive relationship with China.Another source explained that while UNHCR has requested resump-tion of the missions directly, it has not adequately pursued alternativeavenues for achieving the same goal. The same source contended thatthe resumption of these missions is not a high priority at UNHCRbecause the missions require substantial time, effort, and resourcesthat its staff would prefer not to expend.

UNHCR did not appear to be aware of these criticisms, and itexpressed less concern about the cessation of the missions than others:

The fact that we went to the border—I’m not surethat it diminished the problem [ofrefoulement]….When disallowed [to travel to the bor-der], we were very concerned. We have been pleasant-ly surprised that the numbers [of refugees arriving atthe Reception Centre in Kathmandu] have remainedthe same in comparison to previous years….We havenot been able to see in any way instructions from thecenter [i.e., Ministry of Home Affairs] to the borderpolice to say to turn people back rather than to bringthem down. Yes, we would like to have access to theborder.…But we have no information that borderofficials receive any different instructions.259

But another source said that there is “no question” that “after themissions stopped, the number of deportations increased.” TibetJustice Center also learned that contrary to UNHCR’s belief, the

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Ministry of Home Affairs has issued explicit instructions to borderpolice that represent an apparent shift in policy. In June 2000,Thame Police Chief Padim Adihairim received a radio directiveinforming him that there are “too many Tibetans in Kathmandu”and that police should seek to send newly arriving Tibetans back tothe border.260 According to a confidential document obtained byTibet Justice Center, the police deported as many as fifty Tibetans inOctober and November 2000. In late December 2000, TIN likewisereported (on what may or may not be the same incident) that “atleast 60 Tibetan refugees who reached border areas of Nepal…have[recently] been returned to police on the Chinese side of the bor-der.”261 Tibet Justice Center’s research therefore suggests that refoule-ment of Tibetans may be occurring with increasing frequency at leastin part because UNHCR no longer carries out border missions.

B. The Government of Nepal

It is a pity on our part that neither can we deport them so easilynor can we accept them. —Udaya Nepali Shrestha262

Tibet Justice Center’s interviews with the Nepalese governmentsuggest that it lacks a clear policy or consistent approach to com-pliance with the gentleman’s agreement. Recent developments—including, for example, an increase in political pressure from theChinese government, growing domestic concern about the numberof Tibetans in Nepal, and related concerns about the integrity of theNepalese cultural identity and economy—appear to have had someinfluence on the government’s compliance with the gentleman’s

259 Tibet Justice Center interview with Roland-Francois Weil, Protection Officer,UNHCR, in Kathmandu (May 25, 2001).

260 Tibet Justice Center interview with Padim Adihairim, Thame Chief of Police,in Thame (June 5, 2001).261 TIN, News Update, Tibetans Sent Back Across the Border as Pressure Increases onNepal, Dec. 20, 2000.262 Tibet Justice Center interview with Udaya Nepali Shrestha, Secretary, Ministryof Law and Justice (May 22, 2001).

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cy, our identity as Nepalese will be lost.” He therefore expressed thehope that other countries, particularly the United States, would beginto accept Tibetan refugees; in that case, he said, “we would be happyto give them one-way transportation to the United States.” 266

Umesh Prasad Mainali, the Director-General of Immigration, maybe the most vital of the Nepalese government officials responsible forimplementing the gentleman’s agreement. Like Secretary Regmi, heexpressed a begrudging recognition of Nepal’s obligations under theagreement, but also some misperceptions—conscious or not—about hisoffice’s compliance. He denied, for example, that police receive anystipend for accompanying Tibetans safely to the Department ofImmigration. And while he insisted that “[p]olice in the border regionsare aware of our policies,” he acknowledged that “sometimes” they maynonetheless behave “differently.” But Mainali was also more forthrightin his assessment of the impact of China’s pressure on the current oper-ation of the agreement. He said that because Beijing believes the Tibetanrefugees to be dissidents engaged in anti-Chinese activities, it urgesNepal to increase its border security: “Conventionally, we have to talkwith the Chinese authorities. It’s difficult for us when Tibetans are foundon the borderline. When found inside the borderline, almost all arehanded over to UNHCR.…Just at the border, they are handed over tothe Chinese.”267 The problem, however, is that the border appears tomean “within several days walking distance from” the literal border.

Notwithstanding these concerns, the Nepalese government’scooperation with UNHCR appears to be motivated by two princi-

263 See, e.g., TIN, News Update, Decline in Refugee Numbers as China and NepalTighten Security on Tibetan Border, Jan. 22, 2002.264 TIN, News Update, Tibetans Sent Back Across the Border as Pressure Increases onNepal, Dec. 20, 2000.265 Tibet Justice Center interview with Udaya Nepali Shrestha, Secretary, Ministryof Law and Justice, in Kathmandu (May 22, 2001).

agreement.263 In December 2000, a spokesperson for the Ministryof Home affairs denied any “change in policy.”264 But Tibet JusticeCenter found evidence to suggest that the government’s attitudetoward the gentleman’s agreement has changed, at least since theKarmapa’s escape from Tibet in January 2000.

The precise nature of this change remains unclear becauseNepalese officials did not themselves present internally consistentaccounts of Nepal’s understanding of the agreement. SecretaryShrestha at the Ministry of Law and Justice said that “as a diplomaticand legal matter, we do not accept [Tibetan refugees]. Sometimes,we deport them….It is our discretion that they can stay [and, if so,they will be] escorted to the UNHCR….It is a pity on our part thatneither can we deport them so easily nor can we accept them.”265

This remark captures the government’s uneasy tolerance of, but cer-tainly not enthusiasm for, the gentleman’s agreement.

The Ministry of Home Affairs and the Department ofImmigration, which falls with the former’s jurisdiction, bear the prin-cipal responsibility for implementing the gentleman’s agreement.Home Secretary Regmi emphasized that Nepal’s “established policy” isthat “Tibet is an integral part of China,” and “[i]t is not the policy ofthis government to believe there are gross human rights violations inTibet.” Echoing a sentiment that Tibet Justice Center heard repeated-ly in interviews with government officials, he also remarked that Nepalis “a small and developing country,” which cannot care for its ownpeople adequately at present, still less for a growing permanent refugeepopulation. Secretary Regmi linked this concern to an anxiety aboutNepal’s cultural integrity: “There is a danger,” he said, “that [Tibetans]will assimilate to Nepali culture….[If] we have a liberal refugee poli-

266 Tibet Justice Center interview with Shree Kant Regmi, Secretary, Ministry ofHome Affairs, in Kathmandu (May 23, 2001).267 Tibet Justice Center interview with Umesh Prasad Mainali, Director-General,Department of Immigration, in Kathmandu (May 21, 2001). Foreign MinisterBastola expressed similar frustrations although in the opposite direction. China,he said, no longer “wants the Tibetans. Previously, they wanted Nepal to pushthem back. Now they’re not very enthusiastic about it.” In a similar vein, headded, referring to the Karmapa’s escape from Tibet: “If the Chinese cannot pre-vent him from leaving Tibet, how can they expect us to help here?” Tibet JusticeCenter interview with Charka Prasad Bastola, Minister, Ministry of ForeignAffairs, in Kathmandu (May 25, 2001).

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Nepalese government’s willingness to cooperate informally to assistTibetan refugees.

Finally, it should be noted that Nepalese officials emphasizedthat, today, the government’s largest concern about Tibetan refugeesis not necessarily those in transit to India; it is rather the growingnumber of Tibetans who return to Tibet through Nepal after visitingIndia and thus reenter Nepal from India. The government appar-ently fears that these Tibetans will remain in Nepal. Director-General Mainali said that Tibetans caught reentering Nepal fromIndia, while eventually returned to UNHCR custody, at times willbe arrested, fined, and jailed.271 Imprisonment for inability to pay afine or debt, “debtor’s prison,” has been abolished in the Anglo-American legal tradition,272 and it is highly questionable under con-temporary international law.273 Nepal nonetheless appears to haveadopted this practice toward Tibetans seeking voluntarily to returnto Tibet from India. In late 2000, the government detained nineteenTibetans for this reason, charging them with high fines and impris-oning them for inability to pay. On the basis of this “precedent,” inAugust 2001, the government detained several other Tibetans seek-

pal factors: pressure from foreign-aid donors, and the need forUNHCR’s technical assistance in handling Nepal’s Bhutaneserefugee crisis.268 Secretary Regmi explained: “We have more than100,000 Bhutanese refugees, and we need support from the globalcommunity. Without it, we will not be able to repatriate theBhutanese. In order to gain support of friendly countries to resettleBhutanese refugees, we are liberal [toward Tibetans in transit toIndia].” But he also stated candidly that should the Bhutaneserefugee situation be resolved, he expects that Nepal would requireUNHCR to close its Kathmandu office and cease assisting Tibetansunder the present arrangement.269

Tibet Justice Center’s interviews with other Nepalese officials,however, and with non-governmental organizations and Tibetanofficials, suggested that the government would be unlikely to dis-continue its low-profile cooperation with UNHCR unless theUnited States, the European Union, and others cease to insist uponits cooperation as a condition of foreign aid—or unless it becomesa serious obstacle to Nepal’s relations with China. Ganesh Dhakal,Undersecretary at the Ministry of Home Affairs, also remarkedthat the “Tibetan refugees belong to Lama orders [i.e., religiousdenominations] and worship Lord Buddha, and are peacemakingpeoples. Their number is few. They can come and go; no prob-lem.”270 While perhaps less representative of official Nepalese poli-cy, Dhakal’s remarks underscore the persistence of a cultural andreligious affinity between the Nepalese and Tibetan peoples. Thisaffinity appears to contribute in at least some small way to the

268 The U.S. Committee for Refugees estimates that 109,200 Bhutanese refugeesreside in the seven camps administered by UNHCR in the Jhapa and Morangregions of eastern Nepal. U.S. Committee for Refugees, Country Reports: Nepal,at <http://www.refugees.org/world/countryrpt/scasia/nepal.html> (visited Sept.17, 2001).269 Tibet Justice Center interview with Shree Kant Regmi, Secretary, Ministry ofHome Affairs, in Kathmandu (May 23, 2001).270 Tibet Justice Center interview with Ganesh Dhakal, Undersecretary, Ministryof Home Affairs, in Kathmandu (May 23, 2001).

271 Tibet Justice Center interview with Umesh Prasad Mainali, Director-General,Department of Immigration, in Kathmandu (May 21, 2001).272 See Robert Weisberg, Commercial Morality, the Merchant Character, and theHistory of the Voidable Preferance, 39 STAN. L. REV. 3, 33 n.109 (1986) (discussingthe developments leading to the abolition of debtor’s prisons in Britain); see alsoIn re Martin-Trigona, 732 F.2d 170, 175 (2d Cir. 1984); Fid. & Deposit Co. v.Browder, 291 F.2d 34, 41 (5th Cir. 1961); State ex rel Moss v. Couch, 841 P.2d1154, 1154 (Okla. Crim. App. 1992); cf. United States v. Reynolds, 235 U.S. 133(1914) (striking down laws permitting peonage).273 See ICCPR, art. 11 (prohibiting imprisonment for failure to fulfil a contractu-al obligation); American Convention on Human Rights, Nov. 22, 1969, art.22(7), 1144 U.N.T.S. 123 (“No one shall be detained for debt.”); cf. U.N.Standard Minimum Rules for the Treatment of Prisoners, ¶ 94, adopted Aug. 30,155, by the First United Nations Congress on the Prevention of Crime and theTreatment of Offenders, U.N. Doc. A/CONF/611, annex I. E.S.C. Res. 663C,24 U.N. ESCOR Supp. (No. 1) at 11, U.N. Doc. E/3048 (1957), amendedE.S.C. Res. 2076, 62 U.N. ESCOR Supp. (No. 1) at 35, U.N. Doc. E/5988(1977) (prescribing rules governing the treatment of prisoners “in countries wherethe law permits imprisonment for debt”).

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for this purpose.276 TheOffice’s representative,appointed directly bythe Dalai Lama, alsoworks with officials atthe Ministry of HomeAffairs to handle anyproblems that ariseconcerning Tibetans inNepal, whether relatedto new arrivals or tothose residing perma-nently in the settle-ments as a result of their arrival before 1989.

The Nepalese government’s reluctance formally to recognize theTibetan government-in-exile sometimes makes it difficult for theTibetan Welfare Office to work effectively with the Ministry ofHome Affairs to carry out the gentleman’s agreement.277 But theNepalese government benefits significantly from the existence of thisunrecognized Tibetan government office. The Tibetan WelfareOffice provides a centralized authority with which the Nepalese gov-ernment can negotiate to resolve any matters concerning Nepal’sTibetan community; and the Home Ministry relies on the Tibetanrepresentative for assistance in this regard.

The Tibetan Welfare Office supervises the Refugee ReceptionCentre’s day-to-day operations. The Office channels funds to theCentre, which generally receives the first word of new arrivals, andthe Centre ensures that the refugees receive food, shelter, and med-ical treatment until their departure from Nepal. The Centre alsogenerally contacts UNHCR and the Department of Immigration toinform them of the arrival of refugee groups in order to coordinate

274 TIN News Update, Tibetan Prisoners in Nepal Seek Royal Pardon, Feb. 15, 2002.275 Senate Foreign Relations Committee, Congressional Staff Trip Report onTibetans in Exile, 138 CONG. REC. S12732-02, at *S12734 (Aug. 12, 1992).

ing to return to Tibet after visiting India and assessed fines—total-ing several thousand dollars, comprised of visa fees, late visa fees, andfines for each day of alleged illegal residence—on the presumptionthat these Tibetans had been resident in Nepal illegally for the dura-tion of their visit to India. Because none of the Tibetans could affordto pay, the Nepalese Department of Immigration imprisoned them.UNHCR is reportedly negotiating with the Ministry of HomeAffairs to ensure that this practice does not continue and to developa means for “Tibetans coming from India [to] safely cross Nepal ontheir way to Tibet in [the] future.” 274

On the whole, Tibet Justice Center’s research indicates that theNepalese government will likely continue to comply with the gentle-man’s agreement provided it (1) remains low-profile, (2) does notinterfere drastically with Nepal’s diplomatic relations with China, (3)does not promote an increase in the number of Tibetans illegallyremaining in Nepal, and therefore (4) does not “threaten” the cultur-al and national integrity of Nepal, which the government perceives—correctly or not—to be in danger from illegal immigration. TheNepalese government will also continue to cooperate with UNHCRat least until the Bhutanese refugee crisis is resolved, and so long as itmust rely upon foreign aid for development and other assistance.

C. The Kathmandu Tibetan Welfare Office

The Tibetan Welfare Office in Kathmandu works with UNHCR toprovide most of the practical assistance required by newly arrivingTibetans. In the early 1990s, the Tibetan government-in-exile pur-chased a five-acre parcel on the outskirts of Kathmandu. In consulta-tion with UNHCR, it constructed what is now the RefugeeReception Centre.275 The Tibetan Welfare Office supervises theCentre’s administration, and UNHCR channels funds to the Office

276 Tibet Justice Center interview with Samdup Lhatse, former representative,Tibetan Welfare Office, in Kathmandu (May 20, 2001).277 Id.

The Refugee Reception Centre in Kathmandu was

refurbished in the 1990s after an infusion of funds

from foreign aid donors, particularly the United

States government.

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ings with the Ministry of Home Affairs and UNHCR. It also main-tains a strong working relationship with the Tibetan Welfare Office.

In the Embassy’s view, the paramount objective of its policies inNepal is to ensure that Tibetans can continue to escape persecutionin China through Nepal, even if this sometimes means restricting therights of Tibetan refugees who reside more permanently in Nepal. “Itis really not a country of first asylum, especially because Nepal is nota signatory to the Refugee Conventions,” Dyson remarked. “But it ismore important morally to have the open border than to have everyform of cultural freedom of expression.” The tradeoff, in other words,is that Nepal will continue to permit the gentleman’s agreement tooperate provided the political expression of Tibetans within Nepaldoes not jeopardize Nepal’s relationship with China. The gentleman’sagreement therefore must remain low-profile. “Protesting in Nepal,”Dyson emphasized, is “counterproductive.”280 The Embassy exercisessubstantial influence in Nepal because the United States continues to

During the winter months, as many as 800 new arrivals may require temporary

shelter, straining the Reception Centre's resources to capacity.

a time for their summary interviews and processing. Kelsang Chime,the Centre’s current director, remarked that the funds it now receivesfrom UNHCR via the Tibetan Welfare Office generally suffice tosustain its day-to-day operations. But at times—particularly duringthe winter months, when as many as 800 new arrivals may requiretemporary shelter—the Centre’s resources become strained to capac-ity. The Centre employs thirteen staff members, including cooks,nurses, and administrative assistants.

Except on sensitive occasions such as Tibetan political anniver-saries, Nepalese officials generally do not frequent the ReceptionCentre or interfere with its operations. After the Karmapa’s escapefrom Tibet, however, Director Chime related that the Nepalese policesought to enter the Centre and to demand documents from therefugees then present. He refused to allow this without express author-ization from UNHCR.278 While operated by the Tibetan government-in-exile, it therefore appears that the Nepalese government treats theReception Centre in practice as an instrumentality of UNHCR.

D. The United States Embassy in Kathmandu

The U.S. Embassy in Kathmandu has no formal role in the gentle-man’s agreement. But its role as the voice of U.S. foreign policy inter-ests in Nepal, which include a commitment to ensuring the contin-uing viability of the gentleman’s agreement, makes the Embassy’s par-ticipation vital. “The United States agenda here,” said Political andEconomic Officer John Dyson, “is to keep the quick flow of refugeesout of Tibet without problems, and to keep the Tibetan refugee com-munity here intact.”279 To this end, the Embassy participates in meet-

280 Tibet Justice Center interview with John Dyson, Political and EconomicOfficer, U.S. Embassy, in Kathmandu (May 23, 2001).

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278 Tibet Justice Center interview with Kelsang Chime, Director, Tibetan RefugeeReception Centre, in Kathmandu (May 24, 2001).279 Tibet Justice Center interview with John Dyson, Political and EconomicOfficer, U.S. Embassy, in Kathmandu (May 23, 2001); see U.S. Backs Nepal toResolve Refugee Issue, U.P.I., Dec. 2, 2000 (noting that “the U.S. government hascalled on the Nepal[ese] government to instruct its border guards to give protec-tion to Tibetan refugees going to India, crossing the Himalayan kingdom”).

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few Tibetans interviewed by TibetJustice Center, however, reportedbeing forcibly repatriated. (Of course,the most likely reason for this is thatrefugees who have reached theReception Centre safely obviouslymanaged to avoid repatriation; but afew interviewees reached Kathmanduonly after two or three attempts, in atleast one case after being previouslyrepatriated by the Nepalese police.)

Most interviewees said that thepolice ceased to follow them afterbetween several hours and one day. Atthis point, the Tibetans frequentlywould remain in hiding briefly andthen turn back toward Kathmandu,following a less conspicuous route.

Tibet Justice Center’s interviews with local residents in Solu Khumbuconfirmed this pattern. Mingma Temba Sherpa, for example, saidthat “[n]ow, they [the police] just take their names and details andtake them to the police stations in Namche. They tell [the Tibetans]to go back to Tibet and take them up the hill a little way—and theTibetans just turn around and come back.”285

In Solu Khumbu, this pattern of (apparently) lax enforcementmay reflect the difficulty of the terrain and the police’s reluctance towalk all the way to the border (several days’ journey). But it may alsoreflect some ambiguity in the officers’ knowledge and understandingof their orders. Thame Police Chief Adihairim said that he tries to“convince” newly arriving Tibetans to return to Tibet. “Now,” hesaid, “there are too many people in Kathmandu, so there’s no placefor the refugees to sleep.” For this reason:

provide the lion’s share of the funds that enable UNHCR to help toimplement the gentleman’s agreement.281 As one Tibetan observed,UNHCR in effect channels U.S. funds in order to confer “interna-tional legitimacy” on the gentleman’s agreement.282

III.Allegations of Abuse and Refoulement by Nepalese Police

Whatever policies the “official” parties to the gentleman’s agreementwork out, it is the Nepalese police that implement them. For thisreason, their knowledge and compliance is vital to its effective oper-ation. Tibet Justice Center’s research suggests that the conduct of theNepalese police is erratic and sometimes abusive. Some intervieweesrelated that the police stole their belongings or money. In a few cases,officers extorted bribes from Tibetans by threatening them withdeportation. Tibet Justice Center also interviewed a number ofTibetans who described brief detentions ranging from several hoursto as long as a few days, at times accompanied by police abuse.283

Based on interviews with new arrivals and police in SoluKhumbu, it appears to be the standard practice, if not policy, of thepolice to order Tibetans apprehended within a few days walking dis-tance of the Tibeto-Nepalese border to return to Tibet. Refugees gen-erally related that the police ordered them to return and followed themback toward the border for several hours. TIN, the InternationalCampaign for Tibet, and TCHRD report cases of refoulement.284 Very281 Tibet Justice Center interview with Michel Dupoizat, Representative,UNHCR, in Kathmandu (May 25, 2001).282 Tibet Justice Center interview with Dorjee Damdul, Researcher, TCHRD, inKathmandu (May 20, 2001).283 The Tibet Information Network (TIN) also has reported isolated instances of moresevere abuses in the past. See TIN, News Update, Tibetan Monk Dies After NepalesePolice Shooting, Nov. 2, 2000; TIN, News Update, Tibetan Girls Raped by Police, Feb.16, 1999; TIN, News Update, Tibetan Boy Shot by Border Police, Feb. 1, 1999.284 See, e.g., TIN, News Update, New Increase in Deportations of Tibetans FromNepal, Dec. 24, 2001; TIN, News Update, Tibetans Sent Back Across the Border asPressure Increases on Nepal, Dec. 20, 2000.

285 Tibet Justice Center interview with Mingma Temba Sherpa, Staff, KhundeHospital, in Khunde (June 4, 2001).

This monk was injured when he fell

into a ravine while running from the

Chinese police on the Nepalese

side of the Sino-Nepalese border.

The injuries he sustained required

fifteen stitches.

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[The Tibetan refugees] are very hungry andeat…maybe 200 or 500 rupees in one meal; and thepolicemen have to pay for all of their expenses. Sothat’s another reason why we don’t take them toKathmandu.…One time I took a group of refugeesto Jiri and received sixty rupees per diem. Westopped at a lodge for dinner, and the refugees atevery big [i.e., a lot]. They cost very much money. Ifthere is this problem, we cannot do this. This is whyI do not care very much anymore.290

Apparently, some local Sherpas contribute food, shelter, andother aid to Tibetans. By some accounts, the police reject this assis-tance. Darpa Sherpa Lhakpa, a seventy-two-year-old resident ofThame, said that he “bring[s] food and things to the police stationsfor the Tibetans; otherwise they have nothing to eat. I have alwayslived here and want to help. I live very close to the police station.Others want to help, but the police do not allow it.”291

Chief Adihairim also said that many of the refugees, fearing repa-triation, resist arrest; and without an interpreter, the police often can-not explain: “We just want to talk to you.”292 It is not clear to whatextent language barriers genuinely account for police misconduct. In atleast some cases, it appears to be a legitimate complaint. Some refugeesinterviewed by Tibet Justice Center were detained by the police—andthe police did, in fact, intend to take them to Kathmandu. But thepolice could not communicate their intention. Fearing for their free-

[t]he government decided that it’s better to sendthem back to the border. So now we talk to them andexplain: “Do not go to Kathmandu or India becauseit will not be so good for you there.” But some don’twant to go back, so they take another route. Wehaven’t seen any [refugees] in three or more months,so I think they take another route….[If ] they comeback, then we will let them go on. But mostly, we tryto get them to go back to Tibet.286

Police Chief Adihairim also explained that for one year, hispolice station has not had a radio. This means he cannot receivedirect instructions from the Department of Immigration or theHome Ministry in Kathmandu. The police may therefore be uncer-tain or misinformed of their orders. This is particularly true becausethe Home Ministry frequently rotates individual officers to differentposts. Those who assume a new post in one of the areas frequentedby Tibetans may not receive proper instructions in the government’stacit policy (i.e., the gentleman’s agreement).287 Director-GeneralMainali denied this, contending that “police in the border regionsare aware of [our] policies.”288 Be this as it may, it seems clear thatnonconformance with government policy is not uncommon.

In part, logistical problems impede the ability of the Nepalesepolice to perform their duties. Chief Adihairim complained that thegovernment gives his officers very little money with which to carry outtheir obligations. He estimated that they received about 50 to 60 Rs(less than U.S. $1) per refugee per diem.289 Chief Adihairim said that:286 Tibet Justice Center interview with Padim Adihairim, Thame Chief of Police,in Thame (June 5, 2001).287 Tibet Justice Center interview with John Dyson, Political and EconomicOfficer, U.S. Embassy, in Kathmandu (May 23, 2001). 288 Tibet Justice Center interview with Umesh Prasad Mainali, Director-General,Department of Immigration, in Kathmandu (May 21, 2001).289 Another source, however, who requested anonymity, said that the policereceive 225 Rs per diem for their assistance to Tibetan refugees, and this stipend

is sufficient to encourage some officers to “take a break” and accompany therefugees to Kathmandu as they should. The discrepancy between the police’saccount of the amount of money they received and that of this source remainsunexplained.290 Tibet Justice Center interview with Padim Adihairim, Thame Chief of Police,in Thame (June 5, 2001).291 Tibet Justice Center interview with Darpa Sherpa Lhakpa, in Thame (June 5, 2001).292 Tibet Justice Center interview with Padim Adihairim, Thame Chief of Police,in Thame (June 5, 2001).

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seeks to influence Nepalese police practices, several sources suggest-ed that police misconduct, and particularly refoulement, reflectsChinese efforts to crack down on the illegal transit of Tibetans intoNepal. In Kodari, one anonymous source said, the Nepalese policewill sometimes accept small bribes in exchange for returningTibetans to Chinese authorities on the opposite side of the border.Tamdin Dorjee explained that the Chinese government engages incovert anti-Tibetan activity in three principal ways: (1) by paying“hooligans and gangsters” in the border regions to return Tibetansto China; (2) by bribing the—often poorly paid—Nepalese policeto do the same; and (3) by bribing Nepalese businessmen with trad-ing privileges in exchange for their service as informants for theChinese police.295 Kelsang Chime, Director of the ReceptionCentre, likewise remarked that at Tatopani, a village location,Tibetans may be repatriated because the Chinese police will pay“ransom” for their return.296

As a general matter, government officials tended to deny theexistence of police abuses. Foreign Minister Bastola acknowledgedoccasional incidents of abuse but insisted that they remain the rareexception, the product of the “flourishing trade of smugglingTibetans into Nepal.” In this context, he said, refugees “may be ill-treated by the local police. Maybe the police demand money fromthe smugglers and, if they cannot pay, they mistreat them.…Whenthe police find out about this smuggling, they want part of the prizemoney.”297 Home Undersecretary Dhakal added that “sometimesthere are certain incidents where the police have sent the [Tibetans]back over the border, but the incidents are few.”298 But both Home

dom, the refugees resisted arrest. Chief Adihairim emphasized that inhis view the absence of an interpreter is the foremost obstacle to carry-ing out the Home Ministry’s orders regarding new arrivals.

Nepalese police, particularly in Solu Khumbu and other remoteregions, also must confront the Maoist rebellion. This creates addition-al obstacles to their compliance with the gentleman’s agreement. Policefear that if they accompany Tibetans toward Kathmandu on foot, theywill be attacked by the Maoist rebels. Chief Adihairim explained that“[t]he Maoist problem is really bad. When I did guiding for the refugees,I didn’t wear a uniform because the Maoists would shoot at me.”293

UNHCR noted that in recent years many police have abandoned theirposts because of Maoist attacks. Representative Dupoizat said thatUNHCR “offered to double the money [and hence the size of thepolice escort] to bring down the refugees,” but the government refused.For this reason, UNHCR once resorted to sending a helicopter to res-cue a group of refugees in police custody in a remote region.Representative Dupoizat felt that this solution, while not always prac-tical, worked well. He claimed that it did not cost much more thanincreasing the police stipend, and it “had a considerable psychologicalimpact, showing that we [UNHCR] are serious.”294

But in general this solution is not available, and the Maoist insur-gency hinders police compliance with the gentleman’s agreement sig-nificantly. A necessary, though probably not sufficient, solution to theproblem of ensuring police compliance must address the personalsafety risks that police face in carrying out their duties. At a mini-mum, however, police unwilling to make the journey themselvesshould permit Tibetans to travel onwards independently to theReception Centre, without delay, rather than force them to returntoward the Tibeto-Nepalese border or detain them.

Finally, while Tibet Justice Center was unable to gather suffi-cient information on the extent to which the Chinese government

293 Id.294 Tibet Justice Center interview with Michel Dupoizat, Representative,UNHCR, in Kathmandu (May 24, 2001).

295 Tibet Justice Center interview with Tamdin Dorjee, Representative, HURON,in Kathmandu (June 1, 2001).296 Tibet Justice Center interview with Kelsang Chime, Director, Tibetan RefugeeReception Centre, in Kathmandu (May 24, 2001).297 Tibet Justice Center interview with Chakra Prasad Bastola, Minister, Ministryof Foreign Affairs, in Kathmandu (May 25, 2001).298 Tibet Justice Center interview with Ganesh Dhakal, Undersecretary, Ministryof Home Affairs, in Kathmandu (May 23, 2001).

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The “Firm Resettlement Bar” to Asylum Under U.S. Law

I. Introduction

Declassified documents from the U.S. Department of State indicatethat, in February 1998, the Department faxed the U.S. Embassy inKathmandu to request its views on “ethnic Tibetans traveling to theUnited States on non-immigrant visas.” The fax notes that the U.S.Immigration and Naturalization Service (INS) “has expressed con-cern about several recent cases of Tibetans making asylum claimsupon entry to the United States,” as well as the “integrity of the[Nepalese government’s] refugee travel document,” because “itappears that a lack of security features makes this document particu-larly susceptible to fraud.”300 The Embassy’s response, also datedFebruary 1998, makes the following points, several of which—as theforegoing discussion makes clear—are not accurate and may wellcause problems for the significant number of Tibetans with genuineclaims to political asylum:

• Tibetans resident in Nepal, many “with almost forty years ofpresence” and “economically [and] socially well-estab-lished,” have relatives or friends in the United States andmay qualify for U.S. visas, issued upon presentation ofNepalese RCs and travel documents. Consequently,“Embassy Kathmandu…regards recent requests for politicalasylum by Tibetans in the United States with skepticism.”

• “All Tibetans living in camps have been issued refugeeidentity cards. However, only about half of those not in

299 Tibet Justice Center interviews with Shree Kant Regmi, Secretary, Ministry ofHome Affairs, in Kathmandu (May 23, 2001); Umesh Prasad Mainali, Director-General, Department of Immigration, in Kathmandu (May 21, 2001).

Secretary Regmi and Director-General of Immigration Mainali, thetwo officials with the greatest responsibility for the behavior ofpolice and immigration authorities, categorically denied knowledgeof any such incidents.299

To ensure compliance with the gentleman’s agreement, then,Tibet Justice Center’s research suggests that changes must be madeat the levels of both policy and practice. Nepalese officials shouldclarify the government’s commitment to the gentleman’s agreement,acknowledge the difficulties encountered by the police, and ensurethat they receive the resources required to carry out their duties,including adequate stipends for the care of refugees and translationassistance. Resumption of UNHCR’s border missions and anincrease in police training also are critically important steps. Becausethe gentleman’s agreement remains, for the time being, the onlypracticable solution to the politically sensitive issue of Tibetanrefugees transiting through Nepal, making these changes would bein the interest of all parties—the Nepalese government’s interest infacilitating the transit of Tibetans into India, UNHCR’s interest inensuring their protection, and, of course, the interest of the newlyarriving Tibetans seeking to escape safely to India.

300 Fax from the U.S. Department of State to the U.S. Embassy in Kathmandu(February 12, 1998) (on file with Tibet Justice Center).

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Under U.S. law, Tibetans deemed “firmly resettled” in Nepal donot qualify for asylum in the United States. The extent to which thefirm-resettlement bar poses problems for genuine Tibetan asylumseekers remains unclear, but Tibet Justice Center’s research suggeststhat it frequently does come up in asylum hearings. The principalreason for this is that asylum officers and immigration judges sus-pect—as the above consular communication implies—that manyTibetans arriving from Nepal in fact possess Nepalese citizenship orpermanent residency; and that they come to the United States seek-ing economic betterment rather than as genuine victims of persecu-tion from Tibet.302 In some cases, this is true. But it presents prob-lems for genuine Tibetan asylum seekers.

We choose to highlight this issue in the United States because thelargest Tibetan community in exile outside of Nepal and India resides inthe United States. We hope that the following analysis will be instruc-tive not only to the U.S. government, but to governments around theworld and those assisting Tibetans in their right to seek asylum.

II.The Present State of the “Firm Resettlement” Doctrine

The bar to asylees “firmly resettled” in a third state dates to the early1960s,303 before the date on which the United States ratified the1967 Protocol Relating to the Status of Refugees,304 and well before

camps have been issued refugee cards.…Consequently,many of these have illicitly purchased Nepalese identifica-tion cards and passports from document vendors and cor-rupt government officials.”

• “Tibetans in Nepal are afforded many of the same rightsenjoyed by Nepalese citizens. They live and travel freelythroughout the Kingdom. They own land and property,maintain bank accounts, and conduct business. They par-ticipate openly in religious and cultural activities.”

• The Tibetan non-immigrant application pool is comprisedlargely of Tibetans with American friends and relatives estab-lished in the United States—often, “Buddhist ‘DharmaStudents’”—and willing to sponsor their visit. The remainderare “Tibetan carpet manufacturers and antique dealers [who]seek entry to the United States to promote export of theirproducts,” and monks and nuns invited to give religiousteachings. “As is the case with our Nepalese applicant pool,many applicants are undoubtedly intending…to work illegal-ly in child care, hotel house-keeping, and food service jobs.”

• Travel documents may be obtained by Tibetans “who hold[Nepalese] refugee identity cards,” and some [ethnic]Tibetans possess legitimate Nepalese passports. The consulardivision is concerned, however, that Tibetans will try to“pass [themselves] off as a Sherpa, a Tamang, or a memberof another of Nepal’s many Tibeto-Burmese ethnic groups.”

• The “recent spate” of asylum applications by Tibetans“suggest[s] that [these] claims are driven more by immi-gration than political concerns.”301

301 Fax from the U.S. Embassy in Kathmandu to the U.S. Department of State(February 1998) (on file with Tibet Justice Center).

302 This problem is one of two main “hurdles” that face Tibetan asylum seekers—the other being the one-year filing deadline. “Mark Beckett, a lawyer at Latham& Watkins,…said that [firm resettlement] trips up Tibetans because they usuallycome [to the United States] through other countries on forged papers.” EdwardLewine, Language, Fear & Illegal Status Bars to Asylum, DAILY NEWS, Feb. 15,2001.303 See Rosenberg v. Yee Chien Woo, 402 U.S. 49, 56 (1971) (holding that, underthen current legislation giving immigration preference to aliens fleeing persecu-tion from communist states, a Chinese refugee’s application for asylum was barredbecause Congress could not “have intended to make refugees in flight from per-secution compete with all of the world’s resettled refugees”).304 Protocol Relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 150, 606

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The theoretical underpinning of this domestic regulation isArticle 1(E) of the 1951 Convention relating to the Status ofRefugees, which excludes from the definition of a refugee personsresident in a third nation enjoying the “rights and obligations…ofnationality” in that nation; and persons who, though once refugees,have “acquired a new nationality” and “enjoy the protection of thecountry of [their] new nationality.”308

In the United States, federal regulations and case law set forth anon-exhaustive list of factors that immigration judges and asylum offi-cers “shall consider” to determine whether a refugee has been firmlyresettled. These include the rights to housing, employment, travel,public assistance, education, potential for naturalization, and proper-ty.309 In addition, the case law affirms that where presence in a thirdnation is not “reasonably proximate” to the applicant’s initial flightfrom persecution, where the applicant is not “en route to refuge in theUnited States,” a presumption of firm resettlement arises.310 This pre-sumption may be overcome, however, by a showing that the “totalityof the circumstances” in the relevant third nation do not amount tofirm resettlement under the federal regulatory definition.311

III.Application to Tibetan Refugees in Nepal

A. New Arrivals

Tibet Justice Center’s research establishes that with the exception ofthe very few Tibetans naturalized in Nepal, no Tibetan refugee inNepal otherwise qualified for asylum (i.e., in flight from persecution)

Congress enacted the Refugee Act of 1980, which implements U.S.treaty obligations under the 1967 Protocol.305 Since that time, thefirm-resettlement doctrine has developed considerably, most impor-tantly, by becoming a mandatory bar to asylum rather than a discre-tionary factor that the INS may consider. In 1990, federal regula-tions recategorized firm resettlement as an absolute bar to asylum—along with, for example, a finding that the applicant committed aserious non-political crime; and in 1996, Congress codified this reg-ulation.306 The present definition, promulgated in 1990, defines analien as firmly resettled:

if, prior to arrival in the United States, he or she entered intoanother nation with, or while in that nation received, anoffer of permanent resident status, citizenship, or some othertype of permanent resettlement, unless he or she establishes:

(a) That his or her entry into that nation was a nec-essary consequence of his or her flight from persecu-tion [and] that he or she remained in that nationonly as long as was necessary to arrange onward travel .. .; or

(b) That the conditions of his or her residence in thatnation were so substantially and consciously restrictedby the authority of the country of refuge that he orshe was not in fact resettled.307

U.N.T.S. 267. The Protocol incorporates by reference the relevant provisions ofthe 1951 Convention Relating to the Status of Refugees.305 See 8 U.S.C. § 1158 (setting forth the processes for aliens to seek asylum in theUnited States).306 8 U.S.C. § 1158(b)(2)(A)(vi); see Andriasian v. INS, 180 F.3d 1033, 1044 n.16(9th Cir. 1999).307 8 C.F.R. § 208.15 (2001) (emphasis added).

308 Convention Relating to the Status of Refugees, July 28, 1951, art. 1(E), 189U.N.T.S. 150.309 8 C.F.R. § 208.15 (2001); see Matter of Soleimani, 20 I. & N. Dec. 99, 106(BIA 1989).310 Cheo v. INS, 162 F.3d 1227, 1229-30 (9th Cir. 1998); see also Abdalla v. INS,43 F.3d 1397, 1399 (10th Cir. 1994).311 Cheo, 162 F.3d at 1229-30. But see Abdille v. Ashcroft, 242 F.3d 477, 486 (3dCir. 2001) (declining to adopt the “totality of the circumstances” test).

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eral points: Tibetans cannot maintain bank accounts, own property,travel freely, or conduct business—save for minor trade and shopsthat do not require incorporation. Nor is it correct that “[a]llTibetans living in camps have been issued refugee identity cards.”312

To the contrary, a large proportion of those in the camps, particu-larly children, do not possess refugee identity cards (RCs). In short,it is not the case that “Tibetans in Nepal are afforded many of thesame rights enjoyed by Nepalese citizens.”313 Canada’s Immigrationand Refugee Board recognized this state of affairs, noting in one casethat “[u]nder Nepali law, the [Tibetan] female claimant was not acitizen of Nepal by virtue of being born there. Since the claimantsdid not have the right to return to Nepal and were not entitled toany status there, they were not excluded [from asylum in Canada]under Article 1(E) of the [1951 Refugee] Convention.”314

Finally, it is worth emphasizing that while Tibet Justice Center’sresearch did not focus on the status of Tibetan refugees in India—anequally, if not more, problematic issue for Tibetans who face the firm-resettlement bar—all available evidence indicates that Tibetans (withthe possible exception of high-profile political refugees such as theKarmapa Lama) cannot obtain legal status and rights in India thatqualify as firm resettlement. Tibetan asylum seekers who arrived inIndia before 1980, principally in the aftermath of the 1959 LhasaUprising, and who also possess Indian refugee identity certificates,enjoy a limited range of rights comparable in many respects to thoseof Tibetans residing in Nepal with RCs. These Tibetans can reside inIndia, conduct business, travel internally subject to limitations, and,with some difficulty, obtain documentation enabling them to travelabroad. But they, too, lack formal status as “refugees” under Indianlaw and, in practice, have no meaningful access to citizenship.Moreover, since 1994 at the latest, the Indian government has ceased

should be deemed firmly resettled. Tibetans arriving after 1989enjoy no legal status and few rights. Under the gentleman’s agree-ment, they generally must depart Nepal within two weeks of theirarrival at the Reception Centre unless extenuating circumstancessuch as medical conditions justify a longer stay. For the vast majori-ty of current asylum applicants, then, the issue of firm resettlementshould not arise. These refugees remain “in flight” from persecution,and their residence in a third nation, Nepal, is “reasonably proxi-mate” to their flight. The principal reason that firm resettlementdoes arise, notwithstanding the law and its implications vis-à-visNepal’s unofficial policy toward Tibetans, is that, to get to theUnited States in the first place, most Tibetans must acquire falsedocumentation of one sort or another, showing that they areNepalese citizens or residents. United States asylum officers andimmigration judges at times suspect, for substantially the reasonsindicated in the February 1998 consular communication, that manysuch Tibetans possess Nepalese citizenship or reside there perma-nently with appreciable, albeit limited, legal rights and status. Thereality is that Tibetans who arrive or have arrived in Nepal after 1989have few, if any, legal rights and no legal status in Nepal.

B. Residents at the Settlements

Tibetans otherwise eligible for asylum who arrived before 1989 andwho possess an RC issued by the Nepalese government also shouldnot be deemed firmly resettled under U.S. law. They cannot ownbusinesses in Nepal, work or travel freely within the country, ownproperty, receive public assistance, or—with extremely rare excep-tions—become naturalized citizens. The “totality of the circum-stances” in Nepal, both legal and practical, should belie any notionthat Tibetans residing in one of the “permanent” settlements in Nepalare firmly resettled within the meaning of the federal regulatory def-inition and pertinent case law. Based on Tibet Justice Center’sresearch, the 1998 consular communication is thus mistaken on sev-

312 Fax from the U.S. Embassy in Kathmandu to the U.S. Department of State(February 1998) (on file with Tibet Justice Center).313 Id.314 CRDD, T98-08850, at <http://www.irb.gc.ca> (visited Mar. 18, 2001).

Conclusion

This report documents the precarious situation of Tibetan refugeestransiting through or residing in Nepal. Tibetans residing in Nepaland their descendants live in legal limbo; they are not recognized asrefugees or given any definable legal status, either by their host state orby UNHCR. Tibetans who entered Nepal before 1989 receive a mod-icum of temporary protection through the government’s issuance ofannually renewable RCs. But these provide little more than the rightto remain in Nepal, typically in isolated and increasingly overcrowdedsettlements. Tibetans cannot own property, incorporate a business, orwork or travel freely within Nepal. Those without RCs risk harass-ment by police. Even though many have resided in Nepal for decades,few, if any, can acquire Nepalese citizenship because of legal andbureaucratic hurdles. Their future is increasingly insecure in a countrythat reluctantly acknowledges, but refuses to accept, their presence.They and their children, born in Nepal and entitled under interna-tional law to acquire a nationality, remain stateless.

Tibetans arriving or who have arrived in Nepal after 1989 haveno legal status and no right to remain in Nepal. Within a few weeksof their arrival, they must leave for Tibetan exile communities inIndia. The informal gentlemen’s agreement between the Nepalesegovernment and UNHCR, while preferable to nothing, appears tobe breaking down in practice. Some Tibetans reported beingdetained by Nepalese border authorities, forced to pay bribes inorder to continue their journey to Kathmandu, and even compelledto march back to Tibet in violation of the fundamental principle ofnon-refoulement. Because the Nepalese government no longer per-mits UNHCR to carry out border missions, monitoring of borderactivity is minimal. The results of this lack of oversight are alarming.In the one-month period between November 25 and December 24,2001, for example, a reliable report indicates that the Nepalesepolice returned at least fifteen Tibetans, including several children,

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altogether to issue refugee identity certificates to Tibetans. It also hasbeen exerting pressure on the Tibetan government-in-exile, based inDharamsala, Himachal Pradesh, to encourage the repatriation of newarrivals. 315 Tibetans apprehended in India without documentationtherefore may be subject to imprisonment and deportation underSection 14 of India’s Foreigners Act; and indeed, in February 1998,the Indian government arrested twenty-one Tibetans on this basis. Inshort, while India often turns a blind eye to newly arriving Tibetanrefugees, the fact remains that “India is not a signatory of the UNRefugee Convention and those Tibetans technically are stateless per-sons who have not been explicitly awarded refugee status.” 316

315 See Robert Joseph Barnett, Adjunct Research Scholar, Columbia University,Note on Claims That India and Nepal Do Not Offer Firm Resettlement to TibetanAsylum Seekers (1999) (unpublished paper) (on file with Tibet Justice Center); seegenerally Tapan K. Bose, India’s Policies and Laws Toward Refugees, 10 HUMAN RTS.SOLIDARITY No. 10 (Oct. 2000).316 TIN, News Update, Refugees Charged by Indian Police for Lack of Papers, Feb. 4,1998.

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Acknowledgments

This report is based principally on research conducted by Robert D.Sloane, of the Board of Directors; and Elizabeth Brundige, ShaheenaAnwari Ahmad, and Diane Curran, of the Allard K. LowensteinInternational Human Rights Law Clinic at Yale Law School. Thereport was written by Robert Sloane and Elizabeth Brundige, withinvaluable contributions from Shaheena Ahmad and Diane Curran;edited by Yodon Thonden, of the Board of Directors, and DennisM. Cusack, President of the Board of Directors; and copyedited andproduced by Minnie Cancellaro, Executive Director.

Tibet Justice Center acknowledges with gratitude the generosity ofthe Tibetan refugees at the Kathmandu Reception Centre and the set-tlements in Pokhara and Kathmandu who patiently took the time toshare their stories with us. In particular, we thank settlement officersJigme Wangdu, of Tashi Palkhiel, Trinlay Gyatso, of Jawalakhel, NorbuDorjee, of Paljorling, and Kelsang Tsering, of Tashi Ling. We owe aspecial debt of gratitude to Dorjee Damdul for superb translation andother assistance, to Bhubaneshwor P. Daibagya, to Samdup Lhatseand Wangchuk Tsering, the former and current representatives of theTibetan Welfare Office, respectively, and to Kelsang Chime, directorof the Reception Centre in Kathmandu. At the Kathmandu Office ofthe United Nations High Commissioner for Refugees, we wish tothank Country Representative Michel Dupoizat and ProtectionOfficer Roland-Francois Weil.

Tibet Justice Center further acknowledges the Nepalese govern-ment for taking the time to discuss candidly with our researchers itspolicy toward Tibetan refugees. In particular, we wish to thank ShreeKant Regmi, Secretary, Ministry of Home Affairs; Chakra PrasadBastola, Minister, Ministry of Foreign Affairs; Udaya NepaliShrestha, Secretary, Ministry of Law and Justice; Ganesh Dhakal,Undersecretary, Ministry of Home Affairs; Umesh Prasad Mainali,Director-General, Department of Immigration; Kapil Shrestha,

to Chinese border guards.317 Tibetans returned to Chinese authori-ties face serious risks of detention, interrogation, and torture.

Notwithstanding UNHCR’s recognition of newly arrivingTibetans as persons “of concern,” UNHCR has not sought to pro-vide Tibetan refugees with a durable solution. Tibetans cannot pres-ent asylum claims or seek a formal determination of their refugeestatus, resulting once again in an undefined and highly precariouslack of legal status. While Tibet Justice Center’s research did notfocus on the status of Tibetans residing in India, conditions forTibetans in India are reportedly analogous to those for Tibetans inNepal. Tibetans in Nepal and India, where the vast majority end up,thus subsist in legal limbo. At a minimum, the Nepalese governmentshould educate border authorities to ensure that refoulement ofnewly arriving Tibetans crossing onto Nepalese soil ceases. Newlyarriving Tibetans should be given the opportunity to seek asylumand to receive a fair refugee status determination with the assistanceof UNCHR. And at a minimum, Tibetans residing in Nepal andtheir children should be issued RCs and afforded greater rights toown property, to work, to travel freely—and, should they wish, toseek to acquire Nepalese citizenship.

But above all, as noted at the outset of this report, the circum-stances for Tibetans in Nepal reveal a pressing need for governments,UNHCR, and the international community to reexamine the cur-rent informal arrangement regarding the status and treatment ofTibetan refugees in host countries, and to work to provide themwith a more durable solution. While Tibetans aspire to return to afree Tibet, the reality is that most have become, and remain, state-less—Tibetan nationals in a world that acknowledges neither theexistence of their nation nor their right under international law toseek a more secure legal status.

317 TIN, News Update, New Increase in Deportations of Tibetans from Nepal, Dec.24, 2001.

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and Faye Straus, Marc Benioff, and Kathleen Cannon. Because ofthat support, the information in this report will be available to probono attorneys throughout the United States representing Tibetanasylum seekers.

Secretary, Nepal Human Rights Commission; and Surya NathUpadhyay, Chief Commissioner, Commission for the Investigationof Abuse of Authority. The following non-governmental organiza-tions also provided substantial assistance: the South Asia Forum forHuman Rights, the Human Rights Organization of Nepal, and theTibetan National Ex-Political Prisoners Association.

Many individuals in Nepal assisted with our research. We acknowl-edge in particular Tamdin Dorjee, Tapan K. Bose, Yeshi Lama, ThinleyNamgyal, Binod Bhattarai, T.R. Onta, Pema Lhundup, DechenTsering, Sebastian Stone, Kelsang Phuntsok, Pubu Dolma, ThinlayNamgyal, Mingma Temba Sherpa and Ang Temba.

Of the United States government, we wish to thank Julia Taft,former Assistant Secretary of State for Population, Migration, andRefugees, and Special Coordinator for Tibet; Susan O’Sullivan andKate Friedrich of the Department of State; and John Dyson, formerPolitical and Economics Officer at the United States Embassy inKathmandu. For sharing with us their knowledge about and experi-ence representing Tibetan asylum seekers in the United States, wethank Amchuk Thubten, Wendy Weiser and, at the LawyersCommittee for Human Rights, Eleanor Acer, Senior Coordinator ofthe Asylum and Immigration Program, and Daniel Shanfield andAnwen Hughes, Staff Attorneys.

For permission to reproduce photographs, we thank Nancy JoJohnson. For insightful comments on earlier drafts, backgroundinformation, recommendations, and other advice, we thank RobertBarnett, Mickey Spiegel, Eva Herzer, Wangchuk Tsering, RachaelReilly, Hiram Ruiz, Ngawang Rabgyal, Rinchen Dharlo, TenzinChodak, Francisca van Holthoon, and James J. Silk.

Finally, we thank Yale Law School’s Allard K. LowensteinInternational Human Rights Law Clinic, the Bernstein family, andthe other donors who endowed the Robert L. Bernstein Fellowship inInternational Human Rights. Their generous financial support madethis research possible. For their ongoing support of Tibet JusticeCenter’s Asylum and Immigration Project, we acknowledge Sandor

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